Closing Documents and Conditions. The obligations of the Underwriters hereunder to purchase the Offered Receipts shall be conditional upon: (a) all representations and warranties and other statements of the Corporation herein being, at the date of this Agreement and at and as of the Closing Time, true and correct in all material respects (or, if qualified by materiality, in all respects); (b) the Corporation having performed in all material respects, at the Closing Time, all of its obligations hereunder theretofore to be performed; (c) prior to the Closing Time, FINRA shall have advised the Underwriters in writing that it has not objected to the underwriting and other terms and arrangements relating to the offering of the Offered Securities; (d) receipt by the Underwriters of favourable legal opinions of the Corporation’s Canadian Counsel addressed to the Underwriters and the Underwriters’ Canadian Counsel, in form and substance reasonably satisfactory to the Underwriters, with respect to such matters as the Underwriters may reasonably request relating to the Corporation, the offering of the Offered Receipts and the transactions contemplated hereby, including, without limitation, that: (i) the Corporation and each of its material subsidiaries (as designated by the Underwriters) have been duly created, incorporated, or amalgamated, as the case may be, and are validly subsisting and have all requisite corporate capacity, power and authority to own and lease their properties and assets and to carry on their respective businesses as now conducted by them and as described in the Offering Documents and are qualified to carry on business under the laws of each of the jurisdictions in which they carry on a material portion of their respective businesses; (ii) the Corporation has full corporate power and authority to enter into this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement and to perform its obligations set out herein and therein, and this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement have been duly authorized, executed and delivered by the Corporation and each of this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms, except that the validity, binding effect and enforceability of the terms of agreements and documents are subject to the qualification that such validity, binding effect and enforceability may be limited by: (i) applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, being available only in the discretion of the applicable court; (iii) the statutory and inherent powers of a court to grant relief from forfeiture, to stay execution of proceedings before it and to stay executions on judgments; (iv) the applicable laws regarding limitations of actions; (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; (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law; and (vii) the rights to indemnity, contribution and waiver under the documents which may be limited or unavailable under applicable law; (iii) the execution and delivery of this Agreement and the fulfillment of the terms hereof by the Corporation, and the performance of and compliance with the terms of this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement by the Corporation does not and will not result in a breach of, or constitute a default under, and does 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: (a) any applicable laws of the Province of Alberta or the federal laws of Canada applicable therein; (b) any term or provision of the articles, by-laws or other constating documents, as applicable, of the Corporation; (c) of which counsel is aware, any resolutions of the shareholders or directors (or any committee thereof) of the Corporation; (d) of which counsel is aware, any indenture, mortgage, note, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which it is bound; or (e) of which counsel is aware, any judgment, decree or order, of any court, governmental agency or body or regulatory authority having jurisdiction over or binding the Corporation or its properties or assets; (iv) the Corporation is a reporting issuer in each of the Provinces of Canada, and is not included in a list of defaulting reporting issuers maintained pursuant to the applicable securities legislation of such provinces, and is eligible to participate in NI 44-101 in each of the Qualifying Provinces; (v) the Firm Receipts and, if applicable, the Option Receipts have been duly and validly created, allotted and issued as Subscription Receipts in accordance with the provisions of the Subscription Receipt Agreement; (vi) the Underlying Shares issuable pursuant to the Firm Receipts and, if applicable, the Option Receipts will, upon issuance in accordance with the terms of the Subscription Receipt Agreement, be issued as fully paid and non-assessable Common Shares; (vii) the attributes of the Offered Securities conform in all material respects with the description thereof contained in the Canadian Final Prospectus; (viii) the Offered Receipts and Underlying Shares are “qualified investments” as set out under the heading “Eligibility for Investment” in the Canadian Final Prospectus and U.S. Final Prospectus; (ix) the statements as to matters of the federal laws of Canada set out in the Canadian Final Prospectus and U.S. Final Prospectus under the heading “Certain Canadian Federal Income Tax Considerations” are accurate in all material respects, subject to the limitations and qualifications stated or referred to in such prospectuses; (x) no withholding tax imposed under the federal laws of Canada or the laws of the Province of Ontario or the Province of Alberta will be payable in respect of the payment or crediting of the commissions contemplated by this Agreement by the Corporation to an Underwriter that is not a resident of Canada and is not deemed to be a resident of Canada for the purposes of the Tax Act, provided that the Underwriter deals at arm’s length with the Corporation (as such term is understood for purposes of the Tax Act), and that such commissions are payable in respect of services rendered by the Underwriter wholly outside of Canada that are performed in the ordinary course of business carried on by the Underwriter that includes the performance of such services for a fee and that any such amount is reasonable in the circumstances; (xi) no goods and services tax imposed under the federal laws of Canada or provincial taxes under the laws of the Province of Ontario or the Province of Alberta will be payable by the Corporation or collectable by an Underwriter in respect of the payment of commissions as contemplated by this Agreement to an Underwriter that is not a resident of Canada, provided that such commissions are in respect of services performed by the Underwriter wholly outside of Canada or the resale of Shares by an Underwriter to U.S. residents; (xii) no stamp duty, documentary taxes or similar taxes are payable by the Corporation under the federal laws of Canada or the laws of the Province of Ontario of the Province of Alberta in connection with the sale and delivery of the Offered Receipts pursuant to this Agreement by the Underwriters or the resale of Offered Receipts by an Underwriter to U.S. residents; (xiii) all necessary documents have been filed, all necessary proceedings have been taken and all legal requirements have been fulfilled as required under the Canadian Securities Laws of each of the Qualifying Provinces in order to qualify the Firm Receipts and, if applicable, the Option Receipts for distribution and sale to the public in each of such Qualifying Provinces by or through persons duly registered under the applicable laws of such provinces who have complied with the relevant provisions of Canadian Securities Laws; (xiv) the offer, purchase and sale of the Firm Receipts and, if applicable, the Option Receipts in Québec complied with all applicable laws of Québec relating to the use of the French language provided that purchasers of the securities in Québec have received a copy of the Canadian Prospectus in the French language and an order confirmation in the French language or in bilingual form; (xv) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Canadian Securities Laws to permit the issuance by the Corporation the Underlying Shares issuable pursuant to the Firm Receipts and, if applicable, the Option Receipts provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer; (xvi) the first trade by a holder of Underlying Shares received pursuant to the Firm Receipts and, if applicable, the Option Receipts will not be subject to the prospectus requirements of Canadian Securities Laws and no filing, proceeding, approval, consent or authorization under Canadian Securities Laws will be required to permit the trading of such Underlying Shares in the Qualifying Provinces, provided that the trade is not a “control distribution” as such term is defined in National Instrument 45-102 (“NI 45-102”) and the Corporation is a “reporting issuer” for the purposes of NI 45-102 at the time of such trade; (xvii) the Corporation has the necessary corporate power and authority to execute and deliver the Offering Documents and all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and filing by it of the Offering Documents; (xviii) the Offered Receipts and the Underlying Shares are conditionally approved for listing on the TSX and, upon notification to the TSX of the issuance and sale thereof and fulfillment of the conditions of the TSX, will be issued and posted for trading on the TSX; (xix) Valiant Trust Company, at its principal offices in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ has been duly appointed the transfer agent and registrar for the Common Shares and the Offered Receipts, and has been duly appointed the escrow agent under the Subscription Receipt Agreement; (xx) the form and terms of the definitive certificates representing the Subscription Receipts and Common Shares have been duly approved and adopted by the board of directors of the Corporation and comply with all legal requirements (including the requirements of the TSX) relating thereto; and (xxi) as to the authorized and issued capital of the Corporation. It is understood that the Corporation’s Canadian Counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than where they are qualified to practice law, and on certificates of officers of the Corporation, the transfer agent of the Corporation and the Corporation’s auditors as to relevant matters of fact; (e) receipt by the Underwriters of favourable legal opinions of the Corporation’s U.S. Counsel addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, with respect to such matters as the Underwriters may reasonably request relating to the Corporation, the offering of the Offered Receipts and the transactions contemplated hereby, including, without limitation: (i) that the issuance and sale and delivery of the Offered Securities by the Corporation, the execution and delivery by the Corporation of this Agreement and the performance by the Corporation of its obligations under this Agreement will not (i) breach or result in a default under any agreement, indenture or instrument listed on Schedule I to such opinion (which schedule shall list all indentures governed by the laws of the State of New York relating to public offerings in the United States or private placements in the United States made pursuant to Rule 144A under the 1933 Act completed by the Corporation or any subsidiary, in each case, which have been identified by the Corporation as being material to the Corporation and its subsidiaries considered as one enterprise) or (ii) violate those laws, rules and regulations of the United States of America and the State of New York (“Applicable Law”), in each case which in such counsel’s experience are normally applicable to the transactions of the type contemplated by this Agreement and the Subscription Receipt Agreement or any judgment, order or decree of any New York or federal court or governmental authority binding upon the Corporation listed on Schedule II to such opinion, except in the case of clause (i) above, such counsel shall express no opinion with respect to any provision of any agreement, indenture or instrument listed on Schedule I to the extent that an opinion with respect to such provision would require making any financial, accounting or mathematical calculation or determination. “Applicable Law” shall not include federal securities laws (except for purposes of the opinion referenced in · below) or state securities laws, anti-fraud laws, or any law, rule or regulation that is applicable to the Corporation, the Subscription Receipt Agreement, the Offered Securities, this Agreement or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any party to this Agreement or any of its affiliates due to the specific assets or business of such party or such affiliate; (ii) that no consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made is required by the Corporation under any Applicable Law or under any judgment, order or decree listed on Schedule II to such counsel’s opinion for the issuance and sale of the Offered Securities by the Corporation, the execution and delivery by the Corporation of this Agreement and the Subscription Receipt Agreement and the performance by the Corporation of its obligations hereunder and thereunder. “Governmental Authority” shall mean any executive, legislative, judicial, administrative or regulatory body of the State of New York or the United States of America;
Appears in 1 contract
Closing Documents and Conditions. The obligations of the Underwriters hereunder to purchase the Offered Receipts Shares shall be conditional upon:
(a) all representations and warranties and other statements of the Corporation herein being, at the date of this Agreement and at and as of the Closing Time, true and correct in all material respects (or, if qualified by materiality, in all respects);
(b) the Corporation having performed in all material respects, at the Closing Time, all of its obligations hereunder theretofore to be performed;
(c) prior to the Closing Time, FINRA shall have advised the Underwriters in writing that it has not objected to the underwriting and other terms and arrangements relating to the offering of the Offered SecuritiesOffering;
(d) receipt by the Underwriters of favourable legal opinions of the Corporation’s 's Canadian Counsel as at the Closing Time addressed to the Underwriters and the Underwriters’ ' Canadian Counsel, in form and substance reasonably satisfactory to the Underwriters, with respect to such matters as the Underwriters may reasonably request relating to the Corporation, the offering of the Offered Receipts Corporation and the transactions contemplated herebyOffering, including, without limitation, that:
(i) the Corporation and each of its material subsidiaries (as designated by the Underwriters) have been duly created, incorporated, or amalgamated, as the case may be, and are validly subsisting and have all requisite corporate capacity, power and authority to own and lease their properties and assets and to carry on their respective businesses as now conducted by them and as described in the Offering Documents and are qualified to carry on business under the laws of each of the jurisdictions in which they carry on a material portion of their respective businesses;
(ii) the Corporation has full corporate power and authority to enter into this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement and to perform its obligations set out herein and therein, and this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement have has been duly authorized, executed and delivered by the Corporation and each of this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms, except that the validity, binding effect and enforceability of the terms of agreements and documents this Agreement are subject to the qualification that such validity, binding effect and enforceability may be limited by: (i) applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ ' rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, being available only in the discretion of the applicable court; (iii) the statutory and inherent powers of a court to grant relief from forfeiture, to stay execution of proceedings before it and to stay executions on judgments; (iv) the applicable laws regarding limitations of actions; (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; (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law; and (vii) the rights to indemnity, contribution and waiver under the documents which may be limited or unavailable under applicable law;
(iii) the execution and delivery of this Agreement and the fulfillment of the terms hereof by the Corporation, and the performance of and compliance with the terms of this Agreement, the Subscription Receipt Agreement and the Acquisition Agreement by the Corporation does not and will not result in a breach of, or constitute a default under, and does 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: (a) any applicable laws of the Province of Alberta or the federal laws of Canada applicable therein; (b) any term or provision of the articles, by-laws or other constating documents, as applicable, of the Corporation; (c) of which counsel is aware, any resolutions of the shareholders or directors (or any committee thereof) of the Corporation; (d) of which counsel is aware, any indenture, mortgage, note, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which it is bound; or (e) of which counsel is aware, any judgment, decree or order, of any court, governmental agency or body or regulatory authority having jurisdiction over or binding the Corporation or its properties or assets;
(iv) the Corporation is a reporting issuer in each of the Provinces of Canada, and is not included in a list of defaulting reporting issuers maintained pursuant to the applicable securities legislation of such provinces, and is eligible to participate in NI 44-101 in each of the Qualifying Provinces;
(v) the Firm Receipts Shares and, if applicable, the Option Receipts Shares have been duly and validly created, allotted and issued as Subscription Receipts in accordance with the provisions of the Subscription Receipt Agreement;
(vi) the Underlying Shares issuable pursuant to the Firm Receipts and, if applicable, the Option Receipts will, upon issuance in accordance with the terms of the Subscription Receipt this Agreement, be validly issued as fully paid and non-assessable Common Shares;
(viivi) the attributes of the Offered Securities Shares conform in all material respects with the description thereof contained in the Canadian Final Prospectus;
(viiivii) the Offered Receipts and Underlying Shares are “"qualified investments” " as set out under the heading “"Eligibility for Investment” " in the Canadian Final Prospectus and U.S. Final Prospectus;
(ixviii) the statements as to matters of the federal laws of Canada set out in the Canadian Final Prospectus and U.S. Final Prospectus under the heading “"Certain Canadian Federal Income Tax Considerations” " are accurate in all material respects, subject to the limitations and qualifications stated or referred to in such prospectuses;
(xix) no withholding tax imposed under the federal laws of Canada or the laws of the Province of Ontario or the Province of Alberta will be payable in respect of the payment or crediting of the commissions contemplated by this Agreement by the Corporation to an Underwriter that is not a resident of Canada and is not deemed to be a resident of Canada for the purposes of the Tax Act, provided that the Underwriter deals at arm’s 's length with the Corporation (as such term is understood for purposes of the Tax Act), and that such commissions are payable in respect of services rendered by the Underwriter wholly outside of Canada that are performed in the ordinary course of business carried on by the Underwriter that includes the performance of such services for a fee and that any such amount is reasonable in the circumstances;
(xix) no goods and services tax imposed under the federal laws of Canada or provincial taxes under the laws of the Province of Ontario or the Province of Alberta will be payable by the Corporation or collectable by an Underwriter in respect of the payment of commissions as contemplated by this Agreement to an Underwriter that is not a resident of Canada, provided that such commissions are in respect of services performed by the Underwriter wholly outside of Canada or the resale of Offered Shares by an Underwriter to U.S. residents;
(xiixi) no stamp duty, documentary taxes or similar taxes are payable by the Corporation under the federal laws of Canada or the laws of the Province of Ontario of the Province of Alberta in connection with the sale and delivery of the Offered Receipts Shares pursuant to this Agreement by the Underwriters or the resale of Offered Receipts Shares by an Underwriter to U.S. residents;
(xiiixii) all necessary documents have been filed, all necessary proceedings have been taken and all legal requirements have been fulfilled as required under the Canadian Securities Laws of each of the Qualifying Provinces in order to qualify the Firm Receipts Shares and, if applicable, the Option Receipts Shares for distribution and sale to the public in each of such Qualifying Provinces by or through persons duly registered under the applicable laws of such provinces who have complied with the relevant provisions of Canadian Securities Laws;
(xivxiii) the offer, purchase and sale of the Firm Receipts Shares and, if applicable, the Option Receipts Shares in Québec complied with all applicable laws of Québec relating to the use of the French language provided that purchasers of the securities in Québec have received a copy of the Canadian Prospectus in the French language and an order confirmation in the French language or in bilingual form;
(xvxiv) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Canadian Securities Laws to permit the issuance by the Corporation the Underlying Shares issuable pursuant to the Firm Receipts and, if applicable, the Option Receipts provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealerOffered Shares;
(xvi) the first trade by a holder of Underlying Shares received pursuant to the Firm Receipts and, if applicable, the Option Receipts will not be subject to the prospectus requirements of Canadian Securities Laws and no filing, proceeding, approval, consent or authorization under Canadian Securities Laws will be required to permit the trading of such Underlying Shares in the Qualifying Provinces, provided that the trade is not a “control distribution” as such term is defined in National Instrument 45-102 (“NI 45-102”) and the Corporation is a “reporting issuer” for the purposes of NI 45-102 at the time of such trade;
(xviixv) the Corporation has the necessary corporate power and authority to execute and deliver the Offering Documents and all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and filing by it of the Offering Documents;
(xviiixvi) the Offered Receipts and the Underlying Shares are conditionally approved for listing on the TSX and, upon notification to the TSX of the issuance and sale thereof and fulfillment of the conditions of the TSX, will be issued and posted for trading on the TSX;
(xixxvii) Valiant Trust Company, at its principal offices in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ has been duly appointed the transfer agent and registrar for the Common Shares and the Offered Receipts, and has been duly appointed the escrow agent under the Subscription Receipt AgreementShares;
(xxxviii) the form and terms of the definitive certificates representing the Subscription Receipts and Common Offered Shares have been duly approved and adopted by the board of directors of the Corporation and comply with all legal requirements (including the requirements of the TSX) relating thereto; and
(xxixix) as to the authorized and issued capital of the Corporation. It is understood that the Corporation’s 's Canadian Counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than where they are qualified to practice law, and on certificates of officers of the Corporation, the transfer agent of the Corporation and the Corporation’s 's auditors as to relevant matters of fact;
(e) receipt by the Underwriters of favourable legal opinions of the Corporation’s 's U.S. Counsel as at the Closing Time addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, with respect to such matters as the Underwriters may reasonably request relating to the Corporation, the offering of the Offered Receipts Corporation and the transactions contemplated herebyOffering, including, without limitation:
(i) that the statements in the U.S. Offering Documents under the heading "Certain United States Federal Income Tax Considerations," to the extent that they constitute summaries of United States federal law or regulation or legal conclusions have been reviewed by Corporation's U.S. Counsel and fairly summarize the matters described under that heading in all material respects;
(ii) that the issuance and sale and delivery of the Offered Securities Shares by the Corporation, the execution and delivery by the Corporation of this Agreement and the performance by the Corporation of its obligations under this Agreement will not (i) breach or result in a default under any agreement, indenture or instrument listed on Schedule I to such opinion (which schedule shall list all indentures governed by the laws of the State of New York relating to public offerings in the United States or private placements in the United States made pursuant to Rule 144A under the 1933 Act completed by the Corporation or any subsidiary, in each case, which have been identified by the Corporation as being material to the Corporation and its subsidiaries considered as one enterprise) or (ii) violate those laws, rules and regulations of the United States of America and the State of New York (“"Applicable Law”"), in each case which in such counsel’s 's experience are normally applicable to the transactions of the type contemplated by this Agreement and the Subscription Receipt Agreement or any judgment, order or decree of any New York or federal court or governmental authority binding upon the Corporation listed on Schedule II to such opinion. "Applicable Law" shall not include federal securities laws (except for purposes of the opinion referenced in paragraph (iii) below) or state securities laws, except in anti-fraud laws, or any law, rule or regulation that is applicable to the case Corporation, the Offered Shares, this Agreement or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any party to this Agreement or any of its affiliates due to the specific assets or business of such party or such affiliate. With respect to clause (i) above, such counsel shall express no opinion with respect to any provision of any agreement, indenture or instrument listed on Schedule I to the extent that an opinion with respect to such provision would require making any financial, accounting or mathematical calculation or determination. “Applicable Law” shall not include federal securities laws (except for purposes of the opinion referenced in · below) or state securities laws, anti-fraud laws, or any law, rule or regulation that is applicable to the Corporation, the Subscription Receipt Agreement, the Offered Securities, this Agreement or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any party to this Agreement or any of its affiliates due to the specific assets or business of such party or such affiliate.;
(iiiii) that no consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made is required by the Corporation under any Applicable Law or under any judgment, order or decree listed on Schedule II to such counsel’s 's opinion for the issuance and sale of the Offered Securities Shares by the Corporation, the execution and delivery by the Corporation of this Agreement and the Subscription Receipt Agreement and the performance by the Corporation of its obligations hereunder and thereunderhereunder. “Governmental Authority” shall mean any executive, legislative, judicial, administrative or regulatory body of the State of New York or the United States of America;"
Appears in 1 contract