Additional Representations and Warranties of the Company. The Company represents and warrants to the Underwriter, and acknowledges that the Underwriter is relying upon such representations and warranties in purchasing the Securities, that: 6.1 the Company is a “foreign private issuer” (as 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 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 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 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 its jurisdiction of incorporation or formation, as the case may be, has the 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 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, 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 none of the outstanding subordinate voting shares of the Company (including the Securities) were issued in violation of the pre-emptive or similar rights of any securityholder of the Company; 6.6 in connection with the Offering, the Company has complied with all requirements applicable to it, and obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and restated registration rights agreements, dated May 29, 2013, between the Company, ▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and 4338618 Canada Inc. (the “Registration Rights Agreement”); 6.7 the Company is currently and, as at the Closing Time, will be directly or indirectly the registered owner of 100% of the equity and voting interest in each of the Material Subsidiaries; 6.8 other than the Material Subsidiaries, the Company does not have any subsidiary whose total assets represent more than 10% of the Company’s consolidated assets or whose sales and operating revenues represent more than 10% of the Company’s consolidated sales and operating revenues as at the date hereof, or, when taken as a group, whose total assets represent more than 20% of the Company’s consolidated assets or whose total sales and operating revenues represent more than 20% of the Company’s consolidated sales and operating revenues as at the date hereof; 6.9 the Company has the requisite corporate power, authority and capacity to enter into this Agreement and to perform its obligations 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; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited 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; 6.11 the form of the certificates representing the Securities have been duly approved and adopted by the Company and comply in all respects with the requirements of the CBCA and the TSX; 6.12 the issued and outstanding subordinate voting shares of the Company are listed and posted for trading on the TSX and the Nasdaq; 6.13 the rights, privileges, restrictions, conditions and other terms attaching to the subordinate voting shares, the multiple voting shares and the preferred shares of the Company conform in all material respects to the respective descriptions thereof contained in the Offering Documents; 6.14 the Financial Statements contained in the Offering Documents have been prepared in conformity with IFRS, consistently applied throughout the periods involved, and comply as to form in all material 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, financial performance and cash flows of the Company as at the dates and for the periods of such Financial Statements. The other Financial Information included in the Offering Documents presents fairly in all material respects the information shown therein and, other than as disclosed in the 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 (i) 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 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; 6.19 to the Company’s Knowledge, 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 which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS. The Company is not aware of any material weaknesses in its internal control over financial 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 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; 6.21 the Company has devised and maintains a system of disclosure controls and procedures designed to ensure that information required to be disclosed by it under Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified in the Canadian Securities Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed will be accumulated and communicated to the management of the Company in charge of disclosure matters, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective; 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 in compliance, and the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are then in effect as of the date hereof and with which the Company is required to comply as of the date hereof, and is actively taking steps, or will actively take steps in a timely manner, to enable it to be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the date hereof; 6.24 except as disclosed in the Offering Documents including the Financial Statements contained therein (and except, in the case of defaults under Company Contracts and Company Laws (as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in the aggregate, have a Material Adverse Effect), 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 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 of facts which after notice or lapse of time, or both, would constitute a default under, or give rise to any right to accelerate the 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 or any Material Subsidiary pursuant to (i) any term or provision of the 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 Closing 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 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 UnderwriterAgents, and acknowledges that the Underwriter is Agents are relying upon such representations and warranties in purchasing the Securitiesoffer and sale of the Offered Shares, that:
6.1 (a) the Company is a “foreign private issuer” (as defined and RM have been duly incorporated or organized and are validly existing and in Rule 405 good standing under the 1933 Actlaws 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 is entitled to use Form F-10 under outstanding shares of, or other equity interests in, RM are owned directly or indirectly by the 1933 Act to register the Offering under the 1933 Act. The Company has prepared Company, have been duly and filed with the SEC an appointment of agent for service of process upon validly authorized and issued, are fully paid and non-assessable, and are owned by the Company on Form F-X in conjunction with 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 filing knowledge of the Registration Statement. The Registration Statement 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 Form F-X conform, and Company will have no shareholdings in any further amendments to the Registration Statement other Company or the Form F-X will conform, in all material respects to the requirements of the 1933 Actbusiness organization;
6.2 since the respective dates as of which information is given in the Offering Documents and (d) except as otherwise disclosed in the Offering DocumentsFinal Prospectus, since December 31, 2017: (i) there has been no Material Adverse ChangeChange (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there have has been no transactions transaction entered into by the Company or any of the Subsidiaries, other than those in the ordinary course of business, which are is material with respect to the Company and the Subsidiaries taken as a wholeCompany; 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 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; (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;
6.3 (e) except where non-compliance does not have and would not reasonably be expected to have a Material Adverse Effect, the Company has been incorporated conducted, is conducting 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 will conduct its business as described in compliance with all applicable laws, rules and regulations of each Offering Document jurisdiction in which it carries on and is registered to transact 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 good standing 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 of 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 is carried which are necessary or desirable to carry 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;
6.4 each business of the Material Subsidiaries has been incorporated (or formed, if it is not a corporation), is existing Company and in good standing under the laws of its jurisdiction of incorporation or formationRM, as the case may be, has the power as now conducted and authority as presently proposed to ownbe conducted; (ii) all such licences, lease permits, registrations or qualifications are valid and operate its properties existing 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 standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the laws Agents; and (iv) the Company is not aware of all jurisdictions any legislation, regulation, rule or lawful requirements presently in which its business is carried on force or in which it owns or leases properties, except where the failure proposed to be so registered brought into force which the Company anticipates the Company or in good standing would not result in Material Adverse Effect. All of the issued and outstanding shares of, Subsidiaries will be unable to comply with without materially adversely affecting the Company or other equity interests in, each Material Subsidiary are owned directly or indirectly by the Subsidiaries;
(l) neither the Company, have been duly and validly authorized and issuednor any of its subsidiaries, and are owned directly or indirectly by including RM, is involved as at the Company free and clear of date hereof in any Lien other than: (i) those described "marijuana-related activities" in the Offering Documents; and United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (ii) Permitted LiensRevised);
6.5 (m) the Company’s authorized share capital consists of an unlimited number of multiple voting shares minute books 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 corporate records 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 none of the outstanding subordinate voting shares of the Company (including the Securities) were issued in violation of the pre-emptive or similar rights of any securityholder of the Company;
6.6 its subsidiary made available in connection with the OfferingAgents' 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 complied with all requirements applicable to it, and obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and restated registration rights agreements, dated May 29, 2013, between the Company, ▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and 4338618 Canada Inc. (the “Registration Rights Agreement”);
6.7 the Company is currently and, as at the Closing Time, will be directly or indirectly the registered owner of 100% of the equity and voting interest in each of the Material Subsidiaries;
6.8 other than the Material Subsidiaries, the Company does not have any subsidiary whose total assets represent more than 10% of the Company’s consolidated assets or whose sales and operating revenues represent more than 10% of the Company’s consolidated sales and operating revenues as at the date hereof, or, when taken as a group, whose total assets represent more than 20% of the Company’s consolidated assets or whose total sales and operating revenues represent more than 20% of the Company’s consolidated sales and operating revenues as at the date hereof;
6.9 the Company has the requisite corporate power, capacity and authority and capacity to enter into and deliver this Agreement and to perform its obligations hereunder;
6.10 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 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; except as , subject to the general qualifications that: (i) enforcement hereof and thereof may be limited by bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or similar 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 of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of 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;
6.11 (q) the form 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 certificates representing the Securities have been duly approved and adopted transactions contemplated hereby by the Company Company, do not and comply will not result in all respects with the requirements 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 CBCA and articles, by-laws or resolutions of the TSXdirectors 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;
6.12 the issued and outstanding subordinate voting shares of the Company are listed and posted for trading on the TSX and the Nasdaq;
6.13 the rights, privileges, restrictions, conditions and other terms attaching to the subordinate voting shares, the multiple voting shares and the preferred shares of the Company conform in all material respects to the respective descriptions thereof contained in the Offering Documents;
6.14 (r) the Financial Statements contained in the Offering Documents have been prepared in conformity with IFRS, consistently International Financial Reporting Standards applied on a consistent basis throughout the periods involvedinvolved and present fairly, and comply as to form in all material respects with the applicable accounting requirements of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects respects:
(i) the financial position, financial performance position and cash flows condition of the Company as at the dates and 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 such 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 Statements. The other Financial Information included Information" contained in the Offering Documents presents fairly in all material respects summary of the information shown therein and, other than as disclosed in the Offering Documents, Final Prospectus 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; (t) the Company owns such inventory free and clear of any Lienwill, other than (i) those described in following the Offering Documents including the Financial Statements contained therein; (ii) those that do notClosing, 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 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;
6.19 to the Company’s Knowledge, 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 maintain a system of internal control over financial reporting which is 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 IFRSInternational Financial Reporting Standards. The Other than as disclosed in the Responses, the Company is not aware of any material weaknesses in its internal control over financial 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 Filingsreporting. The Company will, and following the Company and its Subsidiaries Closing, 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;
6.21 the Company has devised and maintains a system of disclosure controls and procedures that is designed to ensure provide reasonable assurance that information required to be disclosed by it the Company under Applicable Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified in the under Applicable Canadian Securities Laws. Such disclosure controls Laws and procedures include controls and procedures designed to ensure that information required to be disclosed will be by the Company under Applicable Canadian Securities Laws is accumulated and communicated to the management of the Company in charge of disclosure mattersCompany's management, or persons performing similar functionsincluding its Chief Executive Officer and Chief Financial Officer, as appropriate appropriate, to allow timely decisions regarding required disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effectivedisclosure;
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 (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 compliancefull 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’s directors Company has no responsibility or officersobligation to pay any commission, in their capacities as suchroyalty, are in compliance licence fee or similar payment to any person with all provisions respect to the property and assets thereof;
(v) the properties and assets of the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Company are free and clear of 2002 all mortgages, pledges, Liens, charges and all rules encumbrances and regulations promulgated thereunder the Company has not done any act or implementing suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are then in effect as material properties and assets of the date hereof and with which the Company is required Company, nor has it done any act, omitted to comply as of the date hereof, and is actively taking steps, do any act or will actively take steps in a timely manner, to enable it permitted any act to be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable done that would reasonably be expected to the Company at all times after the date hereof;
6.24 except as disclosed in the Offering Documents including the Financial Statements contained therein (and except, in the case of defaults under Company Contracts and Company Laws (as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in the aggregate, have a Material Adverse Effect), 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 ;
(w) no proposed acquisition by the Company 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 has progressed to a state of facts which after notice or lapse of time, or both, where a reasonable person would constitute a default under, or give rise to any right to accelerate believe that the maturity or require the prepayment of any indebtedness under, or result in the imposition of any Lien upon any property or assets likelihood of the Company or any Material Subsidiary pursuant to (i) any term or provision completing the acquisition is high and that, if completed by the Company at the date of the constating documents or by-laws of Final Prospectus, would be a significant acquisition for 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 Closing 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 whipu
Appears in 1 contract
Sources: Agency Agreement
Additional Representations and Warranties of the Company. The Company represents and warrants to the UnderwriterUnderwriters, and acknowledges that the Underwriter is Underwriters are relying upon such representations and warranties in purchasing the SecuritiesOffered Shares, that:
6.1 (a) the Company is a “foreign private issuer” (as 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 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 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 corporation incorporated and is validly existing as a corporation and in good standing under the federal laws of Canada, the Province of Ontario and has the 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 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 enter into this Agreement and to 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 properties Assets and assets (including licenses Properties and other similar rights) and neither the Company nor, 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 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 knowledge of the Material Subsidiaries has been incorporated (or formedCompany, if it is not a corporation), is existing and in good standing under the laws of its jurisdiction of incorporation or formation, as the case may beany other person, has the power and authority to owntaken any steps or proceedings, 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 voluntary or in which it owns otherwise, requiring or leases properties, except where the failure to be so registered authorizing Canopy Rivers’ dissolution or in good standing would not result in Material Adverse Effectwinding up. All of the issued and outstanding shares of, or other equity interests in, each Material Subsidiary 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 Lien other than: (i) than those described in the Offering Documents; Documents and (ii) Permitted Liensthose that would not reasonably expected to have a Material Adverse Effect;
6.5 (c) to the knowledge of the Company, each Portfolio Company is an entity formed and validly existing in 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 as now conducted in each of the jurisdictions it carries on business and to own, lease or operate its Assets and Properties. To the knowledge of the Company, no person has taken any steps or proceedings, voluntary or otherwise, requiring or authorizing any Portfolio 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 dissolution or company winding up;
(d) neither the Company (except for Canopy Rivers) nor Canopy Rivers has any agreement direct or option, or right or privilege indirect subsidiaries;
(whether pre-emptive or contractuale) capable of becoming an agreement or option, for the purchase from neither the Company nor Canopy Rivers has any investment in any person or any Material Subsidiary of agreement, option or commitment to acquire 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 Subsidiarysuch investment, except as otherwise referred to disclosed in the Offering Documents. All ;
(f) each of the issued execution and outstanding subordinate voting shares delivery of this Agreement, the performance by the Company of its obligations hereunder, the issue and sale of the Company (including Offered Shares and the Securities) have been duly and validly authorized and issued as fully paid and non-assessable, and none consummation of the outstanding subordinate voting shares of transactions contemplated herein do not and will not:
(i) require any consent, approval, permit, authorization or filing except (x) the Company (including the Securities) were issued in violation of the pre-emptive or similar rights of any securityholder approval of the Company;
6.6 in connection ’s Board of Directors (which has been obtained with respect to the Offering, the Company has complied with all requirements applicable to it, Preliminary Offering Documents and obtained all consents and waivers required to will be obtained by itfor the Final Offering Documents and any Offering Document Amendment), on (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 date hereof under the amended and restated registration rights agreements, dated May 29, 2013, between the Company, ▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and 4338618 Canada Inc. (the “Registration Rights Agreement”);
6.7 the Company is currently and, as at the Closing Time, will be directly or
(ii) conflict with or indirectly the registered owner result in a breach or violation of 100% any of the equity and voting interest in each 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 Laws; (B) the constating documents, by-laws or resolutions of the Material Subsidiaries;
6.8 other than the Material Subsidiaries, the Company does not have any subsidiary whose total assets represent more than 10% of the Company’s consolidated assets or whose sales and operating revenues represent more than 10% of the Company’s consolidated sales and operating revenues as Canopy Rivers which are in effect at the date hereof; (C) any mortgage, ornote, when taken as indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which the Company or Canopy Rivers is a groupparty or by which it is bound (including the Coattail Agreement and any Contract between the Company or Canopy Rivers in respect of a Portfolio Company); or (D) any judgment, whose total assets represent more than 20% of decree or order binding the Company’s consolidated assets , Canopy Rivers or whose total sales their Assets and operating revenues represent more than 20% of the Company’s consolidated sales and operating revenues as at the date hereofProperties;
6.9 the Company has the requisite corporate power, authority and capacity to enter into this Agreement and to perform its obligations hereunder;
6.10 (g) this Agreement has been duly authorized, 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; , except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles principals when equitable remedies are sought sought, and subject to by the fact that rights of indemnity to indemnity, contribution and contribution waiver, and the ability to sever unenforceable terms, may be limited by applicable lawApplicable Law;
6.11 (h) the form authorized capital of the certificates representing Company consists of an unlimited number of multiple voting shares and an unlimited number of subordinated voting shares, of which, immediately prior to the Securities have been duly approved Closing Time (prior to giving effect to the Offering), 36,468,318 multiple voting shares and adopted by 134,844,363 subordinated voting shares were issued and outstanding as fully paid and non-assessable shares in the Company and comply in all respects with the requirements capital of the CBCA and the TSX;
6.12 Company. All of the issued and outstanding subordinate subordinated voting shares of the Company are listed and posted for trading on the TSX and TSXV. Canopy Growth is the Nasdaq;
6.13 the rights, privileges, restrictions, conditions and other terms attaching to the subordinate voting shares, 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 preferred 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 conform 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 respective descriptions thereof contained in the Offering Documents;
6.14 the Financial Statements contained in the Offering Documents have been prepared in conformity with IFRS, consistently applied throughout the periods involved, and comply as to form in all material respects with the applicable accounting requirements of such Canadian Securities Laws and any applicable rules of the CBCA. Such Financial Statements present fairly in all TSXV;
(p) the Company has not filed a confidential material respects change report with any of the financial position, financial performance Canadian Securities Regulators which remains confidential;
(q) the Transfer Agent is the duly appointed registrar and cash flows transfer agent of the Company as at with respect to the dates and subordinated voting shares of the Company;
(r) the Company is not subject to the reporting requirements of Section 13(a) or 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, or may become, obligated to issue any of its securities, (ii) for the periods purchase of such Financial Statements. The any securities (including any debt) of Canopy Rivers, or (iii) for the purchase of any material part of the Business;
(t) neither the Company nor Canopy Rivers is or, to the knowledge of the Company, is alleged to be (i) in violation or breach of any provision of its articles, by-laws or other Financial Information included constating documents or any Applicable Laws, including Canadian Securities Laws, or (ii) in default in the Offering Documents presents fairly in all material respects the information shown therein andperformance or observance of any obligation, other than as disclosed in the Offering Documentsagreement, 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 covenant or condition contained in the Offering Documentsany Contract or permit to which it is a party or by which it is bound or to which its property or assets are bound, except, in each case, in the ordinary course of business for any such violations, breaches or as otherwise defaults that would not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (i) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do notreasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or materially adversely 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 rights of the Subsidiaries; and (iii) Permitted Liens; as Underwriters under this Agreement or the rights of holders 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 IFRSOffered Shares;
6.16 except as disclosed in the Offering Documents, including the Financial Statements contained therein, (u) neither the Company nor Canopy Rivers has any of the Subsidiaries has outstanding any debentures, notes, mortgages, Indebtedness 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) otherwise 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 date hereof other than as disclosed in the most recent Financial Statements or in the Offering Documents, including ;
(v) the Financial Statements (including the notes thereto) contained therein, or which would not, individually or incorporated by reference in the aggregatePreliminary Prospectus, result and the consolidated Financial Statements (including the notes thereto) that will be contained or incorporated by reference in a Material Adverse Effect, since January 31, 2024the Final Prospectus will, (i) there has not been any change present fairly, in all material respects, the share capitalfinancial position, long-term debtresults of operations, financial condition or operations cash flows and all of the Company or any assets and liabilities of the Subsidiaries other than changes Company, in each case on a consolidated basis, for the ordinary course of business; periods ended on, and as at, the dates 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 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;
6.19 to the Company’s Knowledge, Deloitte LLP is and was, during for 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 which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS. The Company is not aware of any material weaknesses in its internal control over financial 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 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;
6.21 the Company has devised and maintains a system of disclosure controls and procedures designed to ensure that information required to be disclosed by it under Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified in the Canadian Securities Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed will be accumulated and communicated to the management of the Company in charge of disclosure matters, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure thereby and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective;
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 in compliance, and the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are then in effect as of the date hereof and with which the Company is required to comply as of the date hereof, and is actively taking steps, or will actively take steps in a timely manner, to enable it to be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the date hereof;
6.24 except as disclosed in the Offering Documents including the Financial Statements contained therein (and except, in the case of defaults under Company Contracts and Company Laws (as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in the aggregate, have a Material Adverse Effect), 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 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 of facts which after notice or lapse of time, or both, would constitute a default under, or give rise to any right to accelerate the 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 or any Material Subsidiary pursuant to (i) any term or provision of the 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 Closing 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 whi
Appears in 1 contract
Sources: Underwriting Agreement
Additional Representations and Warranties of the Company. The Company represents and warrants to the Underwriter, and acknowledges that the Underwriter is relying upon such representations and warranties in purchasing the Securities, thatyou:
6.1 (a) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement and Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified is not reasonably likely, individually or in the aggregate, to have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or, in the case of a partnership or limited liability company, formed and is a validly existing corporation, limited liability company or partnership in good standing under the laws of the jurisdiction of its organization, with power and authority (corporate, limited liability company or partnership, as applicable) to own its properties and conduct its business as described in the Registration Statement and Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign private corporation, limited liability company or partnership in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each subsidiary of the Company that is a corporation has been duly authorized and validly issued and is fully paid and nonassessable, and all of the partnership or membership interests of each subsidiary that is a partnership or limited liability company have been duly authorized and validly issued; and the outstanding capital stock or partnership or membership interests of each subsidiary of the Company, directly or through subsidiaries, is owned by the Company free from liens, encumbrances and defects, except in each case for matters that are not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(c) The Company has all corporate power and authority necessary to commence and consummate the Rights Offering, to execute and deliver this Agreement, the Side Letter and the Engagement Letter and to perform its obligations under this Agreement, the Side Letter and the Engagement Letter. The execution and delivery of, and the performance by the Company of its obligations under, this Agreement, the Side Letter and the Engagement Letter have been duly and validly authorized by the Company; and each of this Agreement, the Side Letter and the Engagement Letter has been duly executed and delivered by the Company and is a legal, valid and binding obligation of the Company enforceable against it in accordance with its terms, except that the enforceability hereof or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors’ rights generally and general principles of equity.
(d) Neither the date of this Agreement is, nor the consummation of the Rights Offering will be, more than three years subsequent to the initial effective date of the Registration Statement.
(i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Securities and (ii) at the date of this Agreement, the Company was not and is not an “ineligible issuer,” (as defined in Rule 405 of the Securities Act, including (x) neither the Company nor any subsidiary of the Company in the preceding three years having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order, as described in Rule 405 of the Securities Act, and (y) the Company, in the preceding three years, not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having a registration statement be the subject of a proceeding under Section 8 of the 1933 Securities Act) , and is entitled to use Form F-10 not having been the subject of a pending proceeding under Section 8A of the 1933 Securities Act to register in connection with the Offering under offering of the 1933 Securities, all as described in Rule 405 of the Securities Act. The Company has prepared and paid the required Commission filing fees relating to the Securities..
(e) The Company has filed with or will have filed at commencement of the SEC an appointment of agent for service of process upon the Company on Form F-X in conjunction with the filing of Rights Offering the Registration Statement, the Prospectus and all other documents required to be filed at that time pursuant to the Securities Act and the rules and regulations promulgated by the Commission thereunder and pursuant to all other applicable rules and regulations of the Commission and Other Agencies, copies of which (including the documents filed or to be filed therewith as exhibits thereto) in the form filed or to be filed, have been or will be promptly furnished to you. The Registration Statement and the Prospectus, as of the first day of the Subscription Period, the date the Company files its Quarterly Report on Form F10-X conformQ (or any amendment thereto), the last day of the Subscription Period and on the date when the Underlying Shares are issued to the Rights Holders who exercise the Rights (the “Settlement Date”), complied and will comply (and with respect to the date the Company files its Quarterly Report on Form 10-Q (or any further amendments amendment thereto), when so filed) in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder, and, as of such dates, do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they are made, not misleading; provided, however, that no representation is made with respect to any statements contained in, or any matter omitted from, the Registration Statement or Prospectus in reliance upon and in conformity with information furnished or confirmed in writing by you to the Form F-X will conformCompany expressly for use therein.
(f) Each preliminary prospectus, if any, filed as part of the Registration Statement in connection with the Rights Offering as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the applicable requirements of the Securities Act.
(g) The documents incorporated by reference or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied or when so filed will comply in all material respects with the requirements of the 1933 Exchange Act;.
6.2 since the respective dates as of which (h) The information is given in the Offering Documents Registration Statement and except Prospectus under the captions “Description of Securities - Common Stock, Preferred Stock and Depositary Shares” (as otherwise disclosed such description may be modified by any document incorporated by reference into the Registration Statement and Prospectus after the date hereof, with respect to changes in the Offering Documentsamended and restated certificate of incorporation after the date hereof), “This Rights Offering” and “Certain U.S. Federal Income Tax Considerations”, to the extent that it constitutes summaries of legal matters or documents referred to therein, fairly and accurately summarizes the matters referred to therein.
(i) there has been The Rights Offering, the issuance and sale of the Underlying Shares pursuant to the Rights Offering and the execution, delivery and performance of this Agreement and the Side Letter by the Company comply and will comply in all material respects with all applicable requirements of Federal, state, local and foreign law, including, without limitation, any applicable regulations of the Commission and Other Agencies, and all judgments, orders or decrees applicable to the Company or its subsidiaries; and no Material Adverse Change; consent, authorization, approval, order, exemption, registration, qualification or other action of, or filing with or notice to, the Commission or any Other Agency is required in connection with the execution, delivery and performance of this Agreement and the Side Letter by the Company or the commencement or consummation by the Company of the Rights Offering, except (i) the listing of the Shares on the New York Stock Exchange, (ii) there as described in the Rights Offering Material, (iii) such as have been no transactions entered into obtained or made or (iv) such as could not reasonably be expected to have a Material Adverse Effect or materially adversely affect the ability of the Company to execute, deliver and perform this Agreement or to commence and consummate the Rights Offering in accordance with its terms.
(j) The Rights Offering, the issuance and sale of the Underlying Shares pursuant to the Rights Offering and the execution, delivery and performance of this Agreement and the Side Letter by the Company, do not and will not (i) result in a violation of any of the provisions of the restated Certificate of Incorporation or amended and restated By-laws (or similar organizational documents), as currently in effect, of the Company or any of its subsidiaries or (ii) result in a breach of any of the Subsidiariesterms or provisions of, or constitute a default (with or without due notice or lapse of time) under, any loan or credit agreement, indenture, deed of trust, mortgage, note, lease or other than those agreement or instrument to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties or assets is or may be bound, except as to such violation, breach or default (A) which is described in the ordinary course Rights Offering Material or (B) which could not be reasonably expected to have a Material Adverse Effect or to materially adversely affect the ability of the Company to execute, deliver and perform this Agreement and the Side Letter or to commence and consummate the Rights Offering in accordance with its terms.
(k) No stop order suspending the effectiveness of the Registration Statement is in effect, and, to the knowledge of the Company, no proceedings for such purpose are pending before or threatened by the Commission.
(l) Except as disclosed in the Registration Statement and Prospectus, since the date of the latest audited financial statements included in the Registration Statement and Prospectus, there has been no material adverse change, nor any development or event reasonably likely to result in a material adverse change in the condition (financial or other), business, which are material with respect to properties or results of operations of the Company and the Subsidiaries its subsidiaries taken as a whole; and (iii) other than , and, except as disclosed in or contemplated by the Offering Documents Registration Statement and except for any dividend Prospectus, including the Rights, or distribution declared, quarterly dividends declared and paid or made to the Company or any Subsidiariesin accordance with past practices, there has been 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;capital stock.
6.3 (m) Except as disclosed in the Company has been incorporated Registration Statement and is existing as a corporation and in good standing under Prospectus, (i) there are no pending actions, suits or proceedings against the federal laws Company, any of Canadaits subsidiaries or any of their respective properties by or before any court, has the corporate power and authority to ownother governmental agency or body or arbitrator (A) that, 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 individually or in which it owns or leases properties except where the failure aggregate, is reasonably likely to be so registered or in good standing would not result in have a Material Adverse Effect;
6.4 each , (B) that is reasonably likely to materially adversely affect the ability of the Material Subsidiaries has been incorporated Company to perform its obligations under this Agreement or to commence or consummate the Rights Offering in accordance with its terms or (or formed, if it C) that is not a corporation), is existing and in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be, has the 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 in which it owns or leases properties, except where the failure otherwise required 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, 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 disclosed in the Offering DocumentsRegistration Statement and Prospectus; and (ii) Permitted Liens;
6.5 to the Company’s knowledge, no such actions, suits or proceedings are threatened.
(n) The Company has the 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 equity capitalization set forth in the Offering DocumentsRegistration Statement and Prospectus. All of the issued and outstanding subordinate voting shares capital stock of the Company (including conforms in all material respects to the Securities) have description thereof in the Registration Statement and Prospectus, has been duly authorized and validly authorized and issued as issued, is fully paid and non-assessable, nonassessable and none of the outstanding subordinate voting shares of the Company (including the Securities) were was not issued in violation of the pre-emptive any preemptive or similar rights of any securityholder of rights.
(o) Except as disclosed in the Company;
6.6 in connection with the OfferingRegistration Statement and Prospectus, the Company has complied with all requirements applicable to itthere are no contracts, and obtained all consents and waivers required to be obtained by it, on agreements or prior to the date hereof under the amended and restated registration rights agreements, dated May 29, 2013, understandings between the Company, ▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇.on the one hand, ▇▇▇▇▇▇ de dépôt et placement du Québecand any person, Beaudier Inc. and 4338618 Canada Inc. (on the “Registration Rights Agreement”);
6.7 other hand, that would give rise to a valid claim against the Company is currently or the Dealer Manager for a brokerage commission, finder’s fee or other like payment in connection with this Agreement or the issuance and sale of the Securities.
(p) The Rights conform in all material respects to the description thereof contained in the Registration Statement and Prospectus, have been duly authorized for issuance, and, as at the Closing Timewhen issued in accordance with such authorization, will be directly or indirectly the registered owner of 100% of the equity and voting interest in each of the Material Subsidiaries;
6.8 other than the Material Subsidiaries, the Company does not have any subsidiary whose total assets represent more than 10% of the Company’s consolidated assets or whose sales and operating revenues represent more than 10% of the Company’s consolidated sales and operating revenues as at the date hereof, or, when taken as a group, whose total assets represent more than 20% of the Company’s consolidated assets or whose total sales and operating revenues represent more than 20% of the Company’s consolidated sales and operating revenues as at the date hereof;
6.9 the Company has the requisite corporate power, authority and capacity to enter into this Agreement and to perform its obligations hereunder;
6.10 this Agreement has been duly authorized, executed and delivered by the Company and constitutes a constitute legal, valid and binding obligation obligations of the Company, Company enforceable against the Company in accordance with its terms; except as enforcement hereof their terms (subject to and thereof may be limited by (i) bankruptcy, insolvency, reorganizationreceivership, moratorium fraudulent conveyance, reorganization or similar other laws of general application relating to or affecting the enforcement of creditors’ rights of creditors generally and except remedies, as limited by the from time to time in effect, (ii) application of equitable principles when equitable remedies are sought (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) consideration of public policy and subject (iv) standards of good faith, fair dealing, course of dealing, materiality and reasonableness that may be applied by a court to the fact that exercise of rights of indemnity and contribution may be limited by applicable law;remedies).
6.11 the form (q) The issuance of the certificates representing the Securities have Underlying Shares has been duly approved and adopted by the Company validly authorized and, when issued and comply delivered against payment therefor in all respects accordance with the requirements terms of the CBCA Rights Offering, will be duly and the TSX;
6.12 the issued validly issued, fully paid and outstanding subordinate voting shares nonassessable, with no violation of the Company are listed and posted for trading on the TSX and the Nasdaq;
6.13 the any preemptive or similar rights, privileges, restrictions, conditions and other terms attaching to the subordinate voting shares, the multiple voting shares and the preferred shares of the Company will conform in all material respects to the respective descriptions thereof contained description of the Common Stock in the Offering Documents;
6.14 Registration Statement and Prospectus. There are, or will be prior to the Financial Statements contained in commencement of the Offering Documents have been prepared in conformity with IFRSRights Offering, consistently applied throughout the periods involved, and comply as to form in all material respects with the applicable accounting requirements sufficient authorized shares of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects the financial position, financial performance and cash flows Common Stock of the Company as at to be issued in connection with the dates and Rights Offering, assuming all Underlying Shares are fully subscribed for by the periods of such Financial Statements. The other Financial Information included Rights Holders in connection with the Offering Documents presents fairly in all material respects the information shown therein and, other than Rights Offering.
(r) Except as disclosed in the Offering DocumentsRegistration Statement and Prospectus, has been compiled on a basis consistent (i) the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that materially interfere with the use made or to be made thereof by the Company or its subsidiaries; and (ii) the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions; except in each case for such liens, encumbrances, defects and exceptions that (1) are typically encountered in the development and acquisition of properties in the Financial Statements;
6.15 ordinary course of the Company’s inventory of products consists of items that are usable business and saleable and work-in-progressthe financing thereof, subject to any reserves reflected or (2) individually or in the most recent Financial Statements contained in aggregate, are not reasonably likely to have a Material Adverse Effect.
(s) The Company and its subsidiaries (i) possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the Offering Documentsbusiness now operated by them, in each caseexcept for such certificates, authorities or permits (1) that the Company or its subsidiaries are seeking or expect to seek to obtain in the ordinary course of business consistent with past practice, or as otherwise would (2) the failure to obtain or maintain is not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (i) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do notreasonably likely, 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 have 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 thereinAdverse Effect; and (ii) as incurred in have not received any notice of proceedings relating to the ordinary course revocation or modification of business by the Company any such certificate, authority 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 notpermit that is reasonably likely, individually or in the aggregate, result in to have a Material Adverse Effect, since January 31, 2024, .
(it) there has not been any change in No labor dispute with the share capital, long-term debt, financial condition or operations employees of the Company or any of the Subsidiaries other than changes in the ordinary course of business; (ii) the business of the Company 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 transferredsubsidiary exists or, 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;
6.19 to the Company’s Knowledge, 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 knowledge of the Company;
6.20 the Company maintains a system of internal control over financial reporting which , is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS. The Company is not aware of any material weaknesses in its internal control over financial 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 and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance imminent 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;
6.21 the Company has devised and maintains a system of disclosure controls and procedures designed to ensure that information required to be disclosed by it under Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified in the Canadian Securities Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed will be accumulated and communicated to the management of the Company in charge of disclosure matters, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective;
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 in compliance, and the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are then in effect as of the date hereof and with which the Company is required to comply as of the date hereof, and is actively taking steps, or will actively take steps in a timely manner, to enable it to be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the date hereof;
6.24 except as disclosed in the Offering Documents including the Financial Statements contained therein (and except, in the case of defaults under Company Contracts and Company Laws (as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in the aggregate, have a Material Adverse Effect), neither the .
(u) 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 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 of facts which after notice or lapse of time, or both, would constitute a default under, or give rise to any right to accelerate the 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 or any Material Subsidiary pursuant to (i) any term or provision of the 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 Closing 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 whiits su
Appears in 1 contract
Sources: Dealer Manager Agreement (Standard Pacific Corp /De/)
Additional Representations and Warranties of the Company. The Company represents and warrants to the UnderwriterUnderwriters, and acknowledges that the Underwriter is Underwriters are relying upon such representations and warranties in purchasing the SecuritiesFirm Shares and the Optional Shares, thatif any, that as of the Applicable Time and as of the date hereof:
6.1 (a) the Company is a “foreign private issuer” (as defined in Rule 405 under the 1933 U.S. Securities Act) and is entitled meets the requirements to use Form F-10 under the 1933 U.S. Securities 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 U.S. Securities Act;
6.2 since the respective dates as of which information is given in the Offering Documents and (b) except as otherwise disclosed in the Offering Documents, since December 31, 2020: (i) there has been no Material Adverse Change; Change with respect to the Company and its subsidiaries taken as a whole, (ii) there have been no transactions entered into by the Company or any of its subsidiaries which are material with respect to the SubsidiariesCompany and its subsidiaries taken as a whole, other than those in the ordinary course of business, which are material with respect to the Company and 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 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 (c) the Company has been incorporated and is existing as a corporation existing 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 Canada Business Corporations Act and is properly registered or licensed to transact carry on 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 on, except where the failure to be so registered or in good standing licensed would not result in have a Material Adverse Effect;
6.4 (d) each of the Material Subsidiaries has been incorporated (or formed, if it subsidiaries of the Company is not a corporation), is corporation existing and in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be, has the 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 formation and is properly registered or licensed to transact carry on 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 propertieson, except where the failure to be so registered or in good standing licensed would not result in have a Material Adverse Effect. All ;
(e) the Company has the requisite corporate power, authority and capacity to execute and deliver this Agreement and to perform its obligations hereunder, and to execute and file with the Canadian Securities Regulators and 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 issued Company and outstanding shares ofits subsidiaries has the requisite corporate power, or other equity interests inauthority and capacity to own, each Material Subsidiary are owned directly or indirectly by the Company, have been duly lease and validly authorized operate its property and issued, assets and are owned directly or indirectly by the Company free to carry on its business as currently carried on and clear of any Lien other than: (i) those described in the Offering Documents; and (ii) Permitted Liensas proposed to be carried on;
6.5 (f) as of October •, 2021 and prior to the Closing, the Company’s authorized share capital consists of an unlimited number of multiple voting shares and subordinate voting sharesSubordinate Voting Shares, an unlimited number of Multiple Voting Shares and an unlimited number of preferred shares, issuable in seriesof which • Subordinate Voting Shares, of which, as of April 16, 2024, an aggregate of 34,829,778 subordinate voting shares, 40,147,916 multiple voting shares • Multiple Voting Shares and no preferred shares were issued and outstanding. No person, firm or company 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 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 Subsidiaryits subsidiaries, except as otherwise referred to disclosed in the Offering Documents. All Documents or as otherwise disclosed in writing to the Underwriters;
(g) all of the issued and outstanding subordinate voting shares Participating Shares of the Company (including the Securities) have been duly and validly authorized and issued as and are fully paid and non-assessableassessable shares of the Company, and none of the outstanding subordinate voting shares such Participating Shares of the Company (including the Securities) were have been issued in violation of the pre-emptive or similar rights of any securityholder of the CompanyCompany or of any other person;
6.6 in connection with the Offering, the Company has complied with all requirements applicable to it, and obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and restated registration rights agreements, dated May 29, 2013, between the Company, ▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and 4338618 Canada Inc. (the “Registration Rights Agreement”);
6.7 the Company is currently and, as at the Closing Time, will be directly or indirectly the registered owner of 100% of the equity and voting interest in each of the Material Subsidiaries;
6.8 other than the Material Subsidiaries, the Company does not have any subsidiary whose total assets represent more than 10% of the Company’s consolidated assets or whose sales and operating revenues represent more than 10% of the Company’s consolidated sales and operating revenues as at the date hereof, or, when taken as a group, whose total assets represent more than 20% of the Company’s consolidated assets or whose total sales and operating revenues represent more than 20% of the Company’s consolidated sales and operating revenues as at the date hereof;
6.9 the Company has the requisite corporate power, authority and capacity to enter into this Agreement and to perform its obligations 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; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited 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;
6.11 h) the form of the certificates representing the Securities Shares have been duly approved and adopted by the Company and comply in all respects with the requirements of the CBCA Canada Business Corporations Act and the TSX;
6.12 (i) the issued and outstanding subordinate voting shares of the Company Subordinate Voting Shares are listed and posted for trading on the TSX and the NasdaqTSX;
6.13 (j) all of the rights, privileges, restrictions, conditions issued and outstanding shares or other terms attaching to equity interests in the subordinate voting shares, the multiple voting shares and the preferred shares subsidiaries of the Company conform (other than LoanPaymentPro, LLC and 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 material respects to of the respective descriptions thereof contained issued and outstanding shares or other equity interests in the Offering Documentssubsidiaries 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;
6.14 (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, in Visa Inc. and in Yello Company Limited, the Company does not have any equity interest, directly or indirectly, in any person;
(A) the Audited Financial Statements contained in the Offering Documents have been prepared in conformity accordance with IFRS, consistently International Financial Reporting Standards applied on a consistent basis throughout the periods involved, involved and comply as to form in all material respects with the applicable accounting requirements of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects the consolidated financial positionposition of the Company as at December 31, financial performance 2020 and 2019, the 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 involved and present fairly in all material respects the consolidated financial position of the Company as at June 30, 2021 and the dates and 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 such Financial Statements. The other Financial Information the Company for the three and six month periods ended June 30, 2021 and 2020 and (C) the consolidated financial information with respect to the Company included in the Time of Sale Prospectus and the Final Offering Documents under the heading “Consolidated Capitalization” presents fairly in all material respects the information shown therein and, other than as disclosed in the Time of Sale Prospectus and the Final 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 (n) there are usable and saleable and workno business relationships, related-inparty transactions or off-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; balance sheet transactions involving the Company owns such inventory free and clear or any of its subsidiaries or any Lien, other than (i) those person required to be described in the Offering Documents including the which have not been described therein as required under International Financial Statements contained therein; Reporting Standards or applicable Canadian Securities Laws;
(iio) those that do notall material accruals for unpaid vacation pay, individually or in the aggregatepremiums for unemployment insurance, materially affect the value of such property health premiums, pension plan premiums, accrued wages, salaries and do not interfere with the use made commissions 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 Employee Plans payments of the Company forming part and its subsidiaries have been recorded in conformity, in all material respects, with International Financial Reporting 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 Financial Statements contained in the Offering DocumentsCompany and its subsidiaries, the values at which such inventory is carried on such balance sheet are in accordance with IFRSas applicable;
6.16 except as disclosed in the Offering Documents, including the Financial Statements contained therein, (p) neither the Company nor any of the Subsidiaries its 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: except (i) as disclosed or contemplated in the Offering Documents including the Financial Statements contained therein; and Documents, or (ii) as incurred in the ordinary course of business by the Company or any of its subsidiaries, as the Subsidiaries case may be, and which do not have a Material Adverse Effect;
6.18 (q) 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, including Documents or the Financial Statements contained thereinStatements, or which would not, individually or in neither the aggregate, result in a Material Adverse Effect, since January 31, 2024, Company nor any of its subsidiaries (i) there has not been made 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 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;
6.19 to the Company’s Knowledge, Deloitte LLP acquisition that is and was, during the periods covered by its reports, independent a “significant acquisition” 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 Laws in its current financial year or prior financial years in respect 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 which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of historical and/or pro forma financial statements for external purposes in accordance with IFRS. The Company is not aware of any material weaknesses in its internal control over financial reporting which would be required to be disclosed 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 acquisition being completed is high, and that would be a “significant acquisition” within the meaning of Canadian Securities Laws, if completed as of the date of the Offering Documents, and in a certificate issued pursuant respect of which historical and/or pro forma financial statements would be required to Regulation 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 – Certification of Disclosure in Issuer’s Annual and Interim FilingsCanadian Securities Laws, and the Company is not aware, and has not been advised by its Subsidiaries maintain a system auditors, of internal accounting controls sufficient to provide reasonable assurance that any “material weakness” (ias defined in NI 52-109) 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 differencestherein;
6.21 the Company has devised and maintains a system of disclosure controls and procedures designed to ensure that information required to be disclosed by it under Canadian Securities Laws is recorded(w) since June 30, processed, summarized and reported within the time periods specified in the Canadian Securities Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed will be accumulated and communicated to the management of the Company in charge of disclosure matters, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective;
6.22 since the date of the most recent Financial Statements2021, 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 (x) to the Company is in complianceknowledge of the Company, and none of the Company’s directors or officersofficers is now, in their capacities or has ever been, subject to an order or ruling of any securities regulatory authority or stock exchange prohibiting such individual from acting as sucha director or officer of a public company or of a company listed on a particular stock exchange;
(y) no director or officer, are in compliance with all provisions former director or officer, or shareholder or employee of, or any other person not dealing at arm’s length with, any of the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated thereunder Company, its subsidiaries or implementing predecessor companies, will continue after the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are then Closing to be engaged in effect as of the date hereof and any material transaction or arrangement with which or be a party to a material contract with, or have any material indebtedness, liability or obligation to, the Company is required to comply as or any of the date hereofits subsidiaries, and is actively taking steps, or will actively take steps in a timely manner, to enable it to be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the date hereof;
6.24 except as disclosed in the Offering Documents including or for employment or consulting arrangements with employees or consultants or those serving as a director or officer of the Financial Statements contained therein (and except, Company or any of its subsidiaries as described in the case of defaults under Company Contracts and Company Laws Offering Documents;
(as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in the aggregate, have a Material Adverse Effect), z) neither the Company nor any of the Material Subsidiaries its subsidiaries is in breach or violation of: (A) any term or default ofprovision of its constating documents or by-laws, nor will (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 or and the performance by the Company or the Material Subsidiaries of their 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 which, after notice or lapse of time, or both, would constitute a default under, or give rise to any right to accelerate the 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 or any Material Subsidiary pursuant to : (iA) any term or provision of the constating documents or by-laws of the Company or any Material Subsidiary 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 Subsidiary; (ii) Adverse Effect, any contract (including the Material Contracts)contract, 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 businesslease, operationsjudgment, property or assets of the Company or any Material Subsidiary is subject (collectively “Company Contracts”); or (iii) any decree, order, statute, law, rule, regulationlicense, judgment, order law or decree regulation applicable to the Company or any Material Subsidiary of its subsidiaries or their business, operations or assets, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over by which the Company or such any of its subsidiaries is bound, and (ii) except as would not have a Material Subsidiary (collectively “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 Laws”)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;
6.25 (bb) the Offering Documents describe, to the extent required by applicable Canadian Securities Laws, all Material Contracts 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 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 Closing Date, made available there are no shareholders’ agreements, voting agreements, investors’ rights agreements or other agreements in force or effect to the Underwriter and all such Material Contracts are or will be at the Closing 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 whiwhich the
Appears in 1 contract
Sources: Underwriting Agreement (Nuvei Corp)
Additional Representations and Warranties of the Company. The Company represents and warrants to the Underwriter, and acknowledges that the Underwriter is relying upon such representations and warranties in purchasing the Securities, thatyou:
6.1 (a) The Company has been duly formed and is a validly existing as a company in good standing under the laws of the jurisdiction of its formation, with the power and authority to own its properties and conduct its business as described in the Registration Statement and Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified is not reasonably likely, individually or in the aggregate, to have a material adverse effect on the condition (financial or other), business affairs, business prospects properties or results of operations of the Company, its subsidiaries and the VIP gaming promoters and predecessors that are affiliated with the Company and its subsidiaries and whose operations are included in the Company’s financial statements (the “Promoter Companies”) taken as a whole (“Material Adverse Effect”).
(b) Each subsidiary of the Company and each of the Promoter Companies has been duly incorporated or, in the case of a partnership or limited liability company, formed and is a validly existing corporation, limited liability company or partnership in good standing under the laws of the jurisdiction of its organization, with power and authority (corporate, limited liability company or partnership, as applicable) to own its properties and conduct its business as described in the Registration Statement and Prospectus; and each subsidiary of the Company, and each of the Promoter Companies, is duly qualified to do business as a foreign private corporation, limited liability company or partnership in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each subsidiary of the Company that is a corporation has been duly authorized and validly issued and is fully paid and nonassessable, and all of the partnership or membership interests of each subsidiary that is a partnership or limited liability company have been duly authorized and validly issued; and the outstanding capital stock or partnership or membership interests of each subsidiary of the Company, directly or through subsidiaries, is owned by the Company free from liens, encumbrances and defects, except in each case for matters that are not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(c) The Company has all corporate power and authority necessary to commence and consummate the Rights Offering, to execute and deliver this Agreement and to perform its obligations under this Agreement. The execution and delivery of, and the performance by the Company of its obligations under, this Agreement has been duly and validly authorized by the Company; and this Agreement has been duly executed and delivered by the Company and is a legal, valid and binding obligation of the Company enforceable against it in accordance with its terms, except that the enforceability hereof or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors’ rights generally and general principles of equity.
(d) Neither the date of this Agreement is, nor the consummation of the Rights Offering will be, more than three years subsequent to the initial effective date of the Registration Statement.
(i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Securities and (ii) at the date of this Agreement, the Company was not and is not an “ineligible issuer,” (as defined in Rule 405 of the Securities Act, including (x) neither the Company nor any subsidiary of the Company in the preceding three years having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order, as described in Rule 405 of the Securities Act, and (y) the Company, in the preceding three years, not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having a registration statement be the subject of a proceeding under Section 8 of the 1933 Securities Act) , and is entitled to use Form F-10 not having been the subject of a pending proceeding under Section 8A of the 1933 Securities Act to register in connection with the Offering under offering of the 1933 Securities, all as described in Rule 405 of the Securities Act. The Company has prepared paid the required Commission filing fees relating to the Securities. The Company meets the requirements for use of Form F-3 under the Securities Act and filed such form is available for use in connection with the SEC an appointment Rights Offering.
(e) The Company has filed, or will have filed at commencement of agent for service the Rights Offering, the Registration Statement, the Prospectus and all other documents required to be filed at that time pursuant to the Securities Act and the rules and regulations promulgated by the Commission thereunder and pursuant to all other applicable rules and regulations of process the Commission and Other Agencies, copies of which (including the documents filed or to be filed therewith as exhibits thereto) in the form filed or to be filed, have been or will be promptly furnished to you. The Registration Statement, as of the first day of the Subscription Period and the last day of the Subscription Period and on the date when the Underlying Shares are issued to the Rights Holders who exercise the Rights (the “Settlement Date”), complied and will comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder, and, as of such dates, do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein not misleading and the Prospectus, as of the first day of the Subscription Period and the last day of the Subscription Period and on the Settlement Date, complied and will comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder, and, as of such dates, do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation is made with respect to any statements contained in, or any matter omitted from, the Registration Statement or Prospectus in reliance upon and in conformity with information furnished or confirmed in writing by you to the Company on Form F-X in conjunction with the filing expressly for use therein.
(f) Each preliminary prospectus, if any, filed as part of the Registration Statement. Statement in connection with the Rights Offering as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the applicable requirements of the Securities Act.
(g) The documents incorporated by reference or deemed to be incorporated by reference in the Registration Statement and the Form F-X conformProspectus, and any further amendments to at the Registration Statement time they were or hereafter are filed with the Form F-X Commission, complied or when so filed will conform, comply in all material respects to with the requirements of the 1933 Exchange Act;.
6.2 since the respective dates as of which (h) The information is given in the Offering Documents Registration Statement and except as otherwise disclosed Prospectus under the captions “Description of Ordinary Shares”, “The Rights Offering” and “Material United States Federal Income Tax Consequences”, to the extent that it constitutes summaries of legal matters or documents referred to therein, fairly and accurately summarizes in all material respects the Offering Documents, matters referred to therein.
(i) there has been The Rights Offering, the issuance and sale of the Underlying Shares pursuant to the Rights Offering and the execution, delivery and performance of this Agreement by the Company comply and will comply in all material respects with all applicable requirements of Federal, state, local and foreign law, including, without limitation, any applicable regulations of the Commission and Other Agencies, and all judgments, orders or decrees applicable to the Company or its subsidiaries; and no Material Adverse Change; consent, authorization, approval, order, exemption, registration, qualification or other action of, or filing with or notice to, the Commission or any Other Agency is required in connection with the execution, delivery and performance of this Agreement and the Side Letter by the Company or the commencement or consummation by the Company of the Rights Offering, except (i) the listing of the Shares on the NASDAQ, (ii) there as described in the Rights Offering Material, (iii) such as have been no transactions entered into obtained or made or (iv) such as could not reasonably be expected to have a Material Adverse Effect or materially adversely affect the ability of the Company to execute, deliver and perform this Agreement or to commence and consummate the Rights Offering in accordance with its terms.
(j) The Rights Offering, the issuance and sale of the Underlying Shares pursuant to the Rights Offering and the execution, delivery and performance of this Agreement by the Company, do not and will not (i) result in a violation of any of the provisions of the Second Amended Memorandum and Articles of Association, as currently in effect, of the Company or any of its subsidiaries or Promoter Companies or (ii) result in a breach of any of the Subsidiariesterms or provisions of, or constitute a default (with or without due notice or lapse of time) under, any loan or credit agreement, indenture, deed of trust, mortgage, note, lease or other than those agreement or instrument to which the Company or any of its subsidiaries or Promoter Companies is a party or by which any of them or any of their respective properties or assets is or may be bound, except as to such violation, breach or default (A) which is described in the ordinary course Rights Offering Material or (B) which could not be reasonably expected to have a Material Adverse Effect or to materially adversely affect the ability of businessthe Company to execute, which deliver and perform this Agreement or to commence and consummate the Rights Offering in accordance with its terms.
(k) No stop order suspending the effectiveness of the Registration Statement is in effect, and, to the knowledge of the Company, no proceedings for such purpose are pending before or threatened by the Commission.
(l) Except as disclosed in the Registration Statement and Prospectus, since the date of the latest audited financial statements included in the Registration Statement and Prospectus, there has been no material with respect adverse change, nor any development or event reasonably likely to result in a material adverse change in the condition (financial or other), business affairs, business prospects properties or results of operations of the Company and the Subsidiaries its subsidiaries and Promoter Companies taken as a whole; and (iii) other than , and, except as disclosed in or contemplated by the Offering Documents Registration Statement and except for any dividend Prospectus, including the Rights, or distribution declared, quarterly dividends declared and paid or made to the Company or any Subsidiariesin accordance with past practices, there has been 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;capital stock.
6.3 (m) Except as disclosed in the Company has been incorporated Registration Statement and is existing as a corporation and in good standing under Prospectus, (i) there are no pending actions, suits or proceedings against the federal laws Company, any of Canadaits subsidiaries or Promoter Companies or any of their respective properties by or before any court, has the corporate power and authority to ownother governmental agency or body or arbitrator (A) that, 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 individually or in which it owns or leases properties except where the failure aggregate, is reasonably likely to be so registered or in good standing would not result in have a Material Adverse Effect;
6.4 each , (B) that is reasonably likely to materially adversely affect the ability of the Material Subsidiaries has been incorporated Company to perform its obligations under this Agreement or to commence or consummate the Rights Offering in accordance with its terms or (or formed, if it C) that is not a corporation), is existing and in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be, has the 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 in which it owns or leases properties, except where the failure otherwise required 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, 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 disclosed in the Offering DocumentsRegistration Statement and Prospectus; and (ii) Permitted Liens;
6.5 to the Company’s knowledge, no such actions, suits or proceedings are threatened.
(n) The Company has the 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 equity capitalization set forth in the Offering DocumentsRegistration Statement and Prospectus. All of the issued and outstanding subordinate voting shares share capital of the Company (including conforms in all material respects to the Securities) have description thereof in the Registration Statement and Prospectus, has been duly authorized and validly authorized and issued as issued, is fully paid and non-assessable, nonassessable and none of the outstanding subordinate voting shares of the Company (including the Securities) were was not issued in violation of the pre-emptive any preemptive or similar rights of any securityholder of rights.
(o) Except as disclosed in the Company;
6.6 in connection with the OfferingRegistration Statement and Prospectus, the Company has complied with all requirements applicable to itthere are no contracts, and obtained all consents and waivers required to be obtained by it, on agreements or prior to the date hereof under the amended and restated registration rights agreements, dated May 29, 2013, understandings between the Company, ▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇.on the one hand, ▇▇▇▇▇▇ de dépôt et placement du Québecand any person, Beaudier Inc. and 4338618 Canada Inc. (on the “Registration Rights Agreement”);
6.7 other hand, that would give rise to a valid claim against the Company is currently or the Dealer Manager for a brokerage commission, finder’s fee or other like payment in connection with this Agreement or the issuance and sale of the Securities.
(p) The Rights conform in all material respects to the description thereof contained in the Registration Statement and Prospectus, have been duly authorized for issuance, and, as at the Closing Timewhen issued in accordance with such authorization, will be directly or indirectly the registered owner of 100% of the equity and voting interest in each of the Material Subsidiaries;
6.8 other than the Material Subsidiaries, the Company does not have any subsidiary whose total assets represent more than 10% of the Company’s consolidated assets or whose sales and operating revenues represent more than 10% of the Company’s consolidated sales and operating revenues as at the date hereof, or, when taken as a group, whose total assets represent more than 20% of the Company’s consolidated assets or whose total sales and operating revenues represent more than 20% of the Company’s consolidated sales and operating revenues as at the date hereof;
6.9 the Company has the requisite corporate power, authority and capacity to enter into this Agreement and to perform its obligations hereunder;
6.10 this Agreement has been duly authorized, executed and delivered by the Company and constitutes a constitute legal, valid and binding obligation obligations of the Company, Company enforceable against the Company in accordance with its terms; except as enforcement hereof their terms (subject to and thereof may be limited by (i) bankruptcy, insolvency, reorganizationreceivership, moratorium fraudulent conveyance, reorganization or similar other laws of general application relating to or affecting the enforcement of creditors’ rights of creditors generally and except remedies, as limited by the from time to time in effect, (ii) application of equitable principles when equitable remedies are sought (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) consideration of public policy and subject (iv) standards of good faith, fair dealing, course of dealing, materiality and reasonableness that may be applied by a court to the fact that exercise of rights of indemnity and contribution may be limited by applicable law;remedies).
6.11 the form (q) The issuance of the certificates representing the Securities have Underlying Shares has been duly approved and adopted by the Company validly authorized and, when issued and comply delivered against payment therefor in all respects accordance with the requirements terms of the CBCA Rights Offering, will be duly and the TSX;
6.12 the issued validly issued, fully paid and outstanding subordinate voting shares nonassessable, with no violation of the Company are listed and posted for trading on the TSX and the Nasdaq;
6.13 the any preemptive or similar rights, privileges, restrictions, conditions and other terms attaching to the subordinate voting shares, the multiple voting shares and the preferred shares of the Company will conform in all material respects to the respective descriptions thereof contained description of the Ordinary Shares in the Offering Documents;
6.14 Registration Statement and Prospectus. There are, or will be prior to the Financial Statements contained in commencement of the Offering Documents have been prepared in conformity with IFRSRights Offering, consistently applied throughout the periods involved, and comply as to form in all material 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, financial performance and cash flows sufficient authorized Ordinary Shares of the Company as at to be issued in connection with the dates and Rights Offering, assuming all Underlying Shares are fully subscribed for by the periods of such Financial Statements. The other Financial Information included Rights Holders in connection with the Offering Documents presents fairly in all material respects the information shown therein and, other than Rights Offering.
(r) Except as disclosed in the Offering DocumentsRegistration Statement and Prospectus, has been compiled on a basis consistent (i) the Company and its subsidiaries and Promoter Companies have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that materially interfere with the use made or to be made thereof by the Company or its subsidiaries or Promoter Companies; and (ii) the Company, its subsidiaries and the Promoter Companies hold any leased real or personal property under valid and enforceable leases with no exceptions; except in each case for such liens, encumbrances, defects and exceptions that (1) are typically encountered in the development and acquisition of properties in the Financial Statements;
6.15 ordinary course of the Company’s inventory of products consists of items that are usable business and saleable and work-in-progressthe financing thereof, subject to any reserves reflected or (2) individually or in the most recent Financial Statements contained in aggregate, are not reasonably likely to have a Material Adverse Effect.
(s) The Company, its subsidiaries and the Offering DocumentsPromoter Companies (i) possess adequate certificates, in each caseauthorities, licenses or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, except for such certificates, authorities or permits (1) that the Company or its subsidiaries or Promoter Companies are seeking or expect to seek to obtain in the ordinary course of business consistent with past practice, or as otherwise would (2) the failure to obtain or maintain is not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (i) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do notreasonably likely, 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 have 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 thereinAdverse Effect; and (ii) as incurred in the ordinary course have not received any notice 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 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;
6.19 proceedings relating to the Company’s Knowledge, 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 which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS. The Company is not aware of any material weaknesses in its internal control over financial 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 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;
6.21 the Company has devised and maintains a system of disclosure controls and procedures designed to ensure that information required to be disclosed by it under Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified in the Canadian Securities Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed will be accumulated and communicated to the management of the Company in charge of disclosure matters, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective;
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 in compliance, and the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are then in effect as of the date hereof and with which the Company is required to comply as of the date hereof, and is actively taking steps, or will actively take steps in a timely manner, to enable it to be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the date hereof;
6.24 except as disclosed in the Offering Documents including the Financial Statements contained therein (and except, in the case of defaults under Company Contracts and Company Laws (as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in the aggregate, have a Material Adverse Effect), 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 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 of facts which after notice or lapse of time, or both, would constitute a default under, or give rise to any right to accelerate the 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 or any Material Subsidiary pursuant to (i) any term or provision of the 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 Closing 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 whith
Appears in 1 contract
Sources: Dealer Manager Agreement (Asia Entertainment & Resources Ltd.)
Additional Representations and Warranties of the Company. The Company represents and warrants to the UnderwriterUnderwriters, and acknowledges that the Underwriter is Underwriters are relying upon such representations and warranties in purchasing the Securities, that:
6.1 the Company is a “foreign private issuer” (as 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 conform8.1 since January 1, and any further amendments to the Registration Statement or the Form F-X will conform2018, 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 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 SubsidiariesDocuments, there has been 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 8.2 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 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;
6.4 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 incorporation or formation, as the case may be, has the 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 (where applicable) 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 (where applicable) would not result in Material Adverse Effect. All of the issued and outstanding shares of, or other equity interests in, 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 8.4 at Closing, the Company’s Company will have an authorized share capital consists consisting of an unlimited number of multiple voting common shares and subordinate voting Class B common shares, and an unlimited number of preferred shares, issuable in series, of which, as of April 16, 2024, which an aggregate of 34,829,778 subordinate voting 13,200,000 common shares, 40,147,916 multiple voting 39,314,394 Class B common shares and no preferred shares were will be issued and outstandingoutstanding 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 subordinate voting common shares of the Company (including the Securitiesany Additional Shares) have been duly and validly authorized and issued as fully paid and non-assessable, and none of the outstanding subordinate voting common shares of the Company (including any Additional Shares) was issued in violation of the Securities) were pre- emptive or similar rights of any securityholder of the Company and 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 been issued in violation of the pre-emptive or similar rights of any securityholder of the Company;
6.6 in connection with the Offering, the Company has complied with all requirements applicable to it, and obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and restated registration rights agreements, dated May 29, 2013, between the Company, ▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and 4338618 Canada Inc. (the “Registration Rights Agreement”);
6.7 8.5 the Company is currently and, as at the Closing Time, will be directly or indirectly the registered owner of 100% of the equity and voting interest in each of the Material Subsidiaries;
6.8 8.6 other than the Material Subsidiaries, the Company does not have any subsidiary whose total assets represent more than 10% of the Company’s consolidated assets or whose sales and operating revenues represent more than 10% of the Company’s consolidated sales and operating revenues as at the date hereof, or, when taken as a group, whose total assets represent more than 20% of the Company’s consolidated assets or whose total sales and operating revenues represent more than 20% of the Company’s consolidated sales and operating revenues as at the date hereof;
6.9 8.7 the Company has the requisite corporate power, authority and capacity to enter into this Agreement Agreement, the Pre-Closing Transactions and to perform its obligations hereunderhereunder and thereunder;
6.10 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; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited 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;
6.11 8.9 at Closing, the Pre-Closing Transactions will have been duly authorized, executed and delivered by the Company;
8.10 at Closing, 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 TSXTSX and will not conflict with the Company’s by-laws or constating documents;
6.12 the issued and outstanding subordinate voting shares of the Company are listed and posted for trading on the TSX and the Nasdaq;
6.13 8.11 the rights, privileges, restrictions, conditions and other terms attaching to the subordinate voting common shares, the multiple voting Class B common shares and the preferred shares of the Company will at Closing and the Option Closing conform in all material respects to the respective descriptions thereof contained in the Offering Documents;
6.14 8.12 the Financial Statements contained in the Offering Documents have been prepared in conformity with IFRS, consistently applied throughout the periods involved, and comply as to form in all material 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, financial performance and cash flows of the Company as at the dates and for the periods of such Financial Statements. The other Financial Information included in the Offering Documents presents fairly in all material respects the information shown therein and, other than as disclosed in the Offering Documents, has been compiled on a basis consistent with that of the Financial Statements;
6.15 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 (i) 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 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;
6.17 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 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;
6.18 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 311, 20242018, (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 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;
6.19 to the Company’s Knowledge, Deloitte LLP 8.17 KPMG 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 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 auditors with respect to audits auditor or any auditor of the CompanyCompany or any of its Subsidiaries;
6.20 8.18 the Company maintains maintains, or will maintain by the time following the Closing by which it will be required to do so under Canadian Securities Laws, a system of internal control over financial reporting which is is, or 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 IFRS. The Company is not aware of any material weaknesses in its internal control over financial 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 . The Company 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;.
6.21 8.19 the Company has devised and maintains maintained, or will have devised and will maintain by the time following the Closing 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 is and 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 in charge of disclosure matters, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and, except as disclosed in the Offering Documents, and such disclosure controls and procedures are or will be effective;
6.22 8.20 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 in compliance, and the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are then in effect as of the date hereof and with which the Company is required to comply as of the date hereof, and is actively taking steps, or will actively take steps in a timely manner, to enable it to be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the date hereof;
6.24 8.21 except as disclosed in the Offering Documents including the Financial Statements contained therein (and except, in the case of defaults under Company Contracts and Company Laws (as defined below), for such breaches, violations, conflicts or defaults that do not or would not, individually or in the aggregate, have a Material Adverse Effect), 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 or the Material Subsidiaries of their obligations hereunderhereunder 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 of facts which after notice or lapse of time, or both, would constitute a default under, or give rise to any right to accelerate the 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 or any Material Subsidiary pursuant to (i) any term or provision of the 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 8.22 all Material Contracts have been or will be prior to the Closing Date, made available to the Underwriter Underwriters and all such Material Contracts are or will be at the Closing (and the Option Closing Time, if 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 whiwhich 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 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 use of the Preliminary Prospectus, the Amended Preliminary Prospectus, the Preliminary Offering Memorandum, the Final Prospectus, the Final Of
Appears in 1 contract
Sources: Underwriting Agreement