Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof: (a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the following: (i) the Issuer: (1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and (2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectus; (ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer; (iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding; (iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer; (v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law; (vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained; (vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not: (1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or (2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties; (viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer; (ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith; (x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction; (xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation; (xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX; (xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts; (xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and (xv) the directors of the Issuer are duly appointed. (b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following: (i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act; (ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will of the Agent hereunder shall be subject to conditional upon the following conditions being fulfilled which are Agent receiving, and the Agent shall have the right on the Closing Date on behalf of subscribers for the exclusive benefit of Subscription Receipts to withdraw all subscriptions delivered and not previously withdrawn by subscribers unless the UnderwritersAgent receives, any of which may be waived, in whole or in part, by on the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofClosing Date:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as opinion of the Closing Date addressed to the Underwriters from the IssuerCompany’s Canadian counsel counsel, in form and content substance satisfactory to the reasonable satisfaction of the Underwriters’ counsel Agent, both acting reasonably, with respect to such matters as the followingAgent may reasonably request, and including, inter alia, an opinion to the effect that:
(i) the Issuer:
(1) is a corporation incorporated Company and validly each of its Subsidiaries are corporations existing under the laws of its their jurisdiction of incorporation; andincorporation and has not been dissolved;
(2ii) the Company and each of its Subsidiaries has all necessary requisite corporate power, authority capacity and capacity power to own or lease and operate its property and assets and to carry on its Business business as presently now conducted as described in the Final Prospectusby it;
(iiiii) the Issuer is Company has all requisite corporate capacity and power to make the Offering and to execute and deliver this Agreement, including the certificates representing the Broker Options, and to perform all of its obligations contemplated thereunder, including the issue of the Common Shares issuable upon the exercise of the Broker Options;
(iv) as at the Closing Date, the authorized to issue capital of the Company consists of an unlimited number of Common Shares, of which, as at the Closing Time, such numbers of 62,640,001 Common Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be are issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, including the certificate representing the Broker Options and the consummation performance by the Company of its obligations thereunder, including the issue of the Offering, Common Shares issuable upon the exercise of the Broker Options do not and will not:
(1) conflict with or result in or will not result in a breach of or default under of, and do not and will not conflict with, any of the terms, conditions or provisions of the constating documents of the Issuer Company or the resolutions of its the directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach shareholders of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiesCompany;
(viiivi) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action has been taken by the IssuerCompany to authorize the execution and delivery of this Agreement and other necessary documents, including the certificates representing the Broker Options and the completion of the Offering; this Agreement and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have such necessary documents has been duly executed and delivered by the Issuer;
(ix) the distribution Company and constitutes a legal, valid and binding obligation of the Offered Shares compliesCompany, enforceable in all material respects, accordance with all laws in the Province of Quebec relating its terms (subject to the use of the French language in connection therewithusual qualifications);
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;
Appears in 1 contract
Sources: Subscription Receipt Agreement
Conditions of Closing. 13.1 The Underwriters’ obligations under Subscriber acknowledges and agrees that the Corporation is relying on the truth of the representations and warranties of the Subscriber contained in this Agreement will be subject as of the date of this Agreement, and as of the Closing Time as if made at and as of the Closing Time, and the fulfillment of the following additional conditions prior to the following conditions being fulfilled which are for Closing Time:
(a) payment by the exclusive benefit Subscriber of the Underwriters, any of which Aggregate Subscription Amount in such manner as may be waivedagreed to by the Agent against delivery of the Purchased Units;
(b) on or before September 18, 2023, the Subscriber having properly completed, signed and delivered this Agreement (including all applicable Schedules hereto) to: iA Capital Markets, a division of iA Private Wealth Inc. ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Toronto, Ontario M5E 1S2, Canada Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇
(c) on or before the Closing Date, the Subscriber having properly completed, signed and delivered a Registration Rights Agreement, in the form attached hereto as SCHEDULE "F";
(d) the Subscriber having executed and returned to the Corporation, at the Corporation’s reasonable request, all other documents as may be required by the Securities Laws for delivery by the Corporation on behalf of the Subscriber;
(e) the Corporation having obtained all necessary approvals and consents, including regulatory approvals in respect of the Offering;
(f) the Corporation having accepted the Subscriber’s subscription, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:;
(ag) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions representations and qualifications, dated warranties of the Subscriber set forth herein being true and correct as of the Closing Date addressed Time;
(h) all covenants and agreements contained herein to be performed by the Subscriber (including, if applicable, each Disclosed Principal) on or prior to the Underwriters from the Issuer’s Canadian counsel Closing Time shall have been performed or complied with in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the following:all material respects;
(i) the Issuer:issue and sale of the Units being exempt from the registration and prospectus requirements under applicable Securities Laws relating to the sale of the Units, or the Corporation having received such orders, consents or approvals as may be required to permit such sale without the requirement to file a prospectus or deliver an offering memorandum (provided that the Corporation shall be obligated to file a registration statement under the U.S. Securities Act with the SEC in respect of resales of the Unit Shares and Warrant Shares, as set forth in the Registration Rights Agreement);
(1j) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporationclosing conditions in the Agency Agreement having been satisfied or waived by the relevant party; and
(2k) has all necessary corporate powerthe Corporation having provided notification to the Nasdaq Capital Market for the listing of the Unit Shares and the Warrant Shares. The Corporation acknowledges and agrees that the Subscriber’s obligation to purchase the Purchased Units is subject to, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in among other things, the Final Prospectus;following conditions:
(iil) the Issuer is authorized to issue an unlimited number representations and warranties of Shares, of which, as at the Corporation contained or otherwise incorporated by reference in this Agreement and the Agency Agreement are true and correct when made and shall be true and correct on the Closing Time, such numbers of Shares Date with the same force and effect as noted in the Canadian Final Prospectus will be validly issued if they had been made on and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingDate;
(ivm) all necessary corporate action has been taken covenants, agreements and conditions contained or otherwise incorporated by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out reference in this Agreement may to be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery performed by the Issuer of this Agreement, Corporation on or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, prior to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel shall have been performed or complied with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements satisfaction of the U.S. Securities ActSubscriber, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Actacting reasonably;
(iin) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authoritythe closing conditions contained in the Agency Agreement in favour of the Agent (and the Subscriber) being satisfied; and
(o) the Subscriber having received copies of the opinions listed in the Agency Agreement, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable opinions shall be addressed to the transactions of the type contemplated by this Agreement;Subscriber.
Appears in 1 contract
Sources: Subscription Agreement (Vision Marine Technologies Inc.)
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer and the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) the Issuer:
(1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30Debentures, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, and the 6.25% convertible subordinated unsecured debentures due June 30, 2018, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creationexecution, certification, issue, sale and delivery of the Offered Shares, and, Debentures and all necessary corporate action has been taken by the Issuer having received to create and validly issue the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the IssuerUnderlying Shares;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the Trust Indenture and the performance of its obligations hereunderthereunder, and this Agreement has and the Trust Indenture have been duly executed and delivered by the Issuer and constitutes a constitute legal, valid and binding obligation obligations of the Issuer enforceable against it in accordance with its their respective terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement and the Trust Indenture may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, the Trust Indenture and the Debentures, or the performance by the Issuer of its obligations hereunderhereunder or thereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Debentures (and the Underlying Shares), except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this AgreementAgreement and the Trust Indenture, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, andor, if applicablenecessary, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, andor, if applicablenecessary, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares Debentures complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares Debentures for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the form and terms of the certificates for the Debentures have been approved and adopted by the directors of the Issuer and comply with the terms and conditions of the Trust Indenture and the requirements of the TSX;
(xiii) the TSX has conditionally approved the listing and posting for trading of the Offered Debentures and the Underlying Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiiixiv) provided as long as the Offered Debentures or the Underlying Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares Debentures will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plansplans (except a deferred profit sharing plan to which the Issuer, or an employer that does not deal at arm’s length with the Issuer, has made a contribution), registered disability savings plans and tax-free savings accounts;
(xivxv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the SharesShares and Computershare Trust Company of Canada, at its principal office in Toronto, has been duly appointed as the trustee under the Trust Indenture with respect to the Debentures; and
(xvxvi) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date and addressed to the Underwriters Underwriters, from Torys LLP, Canadian counsel to the Issuer’s U.S. securities counsel Underwriters, in form and content to the reasonable satisfaction of the Underwriters’ counsel Underwriters with respect to such matters as the Underwriters may reasonably request;
(c) the Underwriters will have received certificates dated the Closing Date signed by those senior officers on behalf of the Issuer, as may be acceptable to the Underwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to all such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements constating documents of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActIssuer;
(ii) No consentthe resolutions of the directors of the Issuer relevant to the approval of the Final Prospectus and the signing and filing thereof, approvalcreation, authorization issuance and sale of the Debentures; and
(iii) the incumbency and signatures of signing officers of the Issuer;
(d) the Underwriters will have received at the Closing Time a certificate dated the Closing Date addressed to the Underwriters and signed by two senior officers of the Issuer, certifying for and on behalf of Issuer:
(i) subsequent to the respective dates as at which information is given in the Final Prospectus or order ofany Supplemental Material there has been no material change (actual, anticipated, contemplated or filingthreatened, registration whether financial or qualification withotherwise) to the business, any Governmental Authorityaffairs, which has not been obtainedassets, liabilities (contingent or otherwise), capital or prospects of the Issuer or its subsidiaries, taken as a whole, and none of the Issuer or made (its subsidiaries has entered into any transaction out of the ordinary course of business which is material to the Issuer or the subsidiaries, taken as a whole, other than as required disclosed in the Final Prospectus or any Supplemental Material;
(ii) there are no actions, suits, proceedings or inquiries pending or threatened against or affecting the Issuer or its subsidiaries at law or in equity or before or by any state securities lawsfederal, provincial, state, municipal, county or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Issuer or its subsidiaries, taken as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares a whole, or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type transaction contemplated by this Agreement;
(iii) no order, ruling or determination having the effect of ceasing or suspending trading in the Shares or prohibiting the sale of the Debentures has been issued, no proceedings for such purpose have been instituted no proceedings for such purpose are pending or, to the Actual Knowledge of the Issuer, threatened;
(iv) the Issuer has complied with all of its obligations under the SNCF Subscription Agreement as required in connection with the Offering of the Debentures;
(v) the Issuer has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied by it up to the Closing Time; and
(vi) the representations and warranties of the Issuer contained in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transaction contemplated by this Agreement; and all of those matters will in fact be true and correct as at the Time of Closing and none of the Underwriters shall have any knowledge to the contrary;
(e) the Underwriters will have received at the Closing Time a comfort letter dated as of the Closing Date addressed to the Underwriters from the Auditors substantially in the form requested by the Underwriters, acting reasonably, updating the comfort letter or letters to be delivered to the Underwriters pursuant to Section 7, provided that such letter may be based on a review by the Auditors having a cut-off date not more than two business days prior to the Closing Date;
(f) all actions required to be taken by or on behalf of the Issuer including the passing of all requisite resolutions of the directors of the Issuer and all requisite filings with governmental authorities, Securities Commissions or courts will have occurred at or prior to the Closing Time, so as to validly authorize the execution and filing of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, to authorize the execution of the Trust Indenture, and to authorize and issue the Debentures and the Underlying Shares, in each case having the attributes contemplated by the Final Prospectus;
(g) the Debentures and the Underlying Shares will have been approved for listing and posting for trading on the TSX, subject only to the Standard Listing Conditions;
(h) the Underwriters will have received at the Closing Time evidence satisfactory to the Underwriters, acting reasonably, that the syndicate of financial institutions under the Credit Facility and the two Canadian insurance companies under the Senior Secured Note Purchase Agreement have consented to the Offering; and
(i) the Underwriters will have received such other certificates, opinions, agreements, materials or documents, in form and substance satisfactory to the Underwriters, as the Underwriters may reasonably request.
13.2 In giving the opinions contemplated in Section 13.1, counsel may rely:
(a) as to matters of fact, to the extent appropriate in the circumstances, on certificates of the Auditors and on certificates of the Issuer executed on their respective behalf by a senior officer, acceptable to the Underwriters, acting reasonably;
(b) on the opinions of local counsel acceptable to the Underwriters and their Underwriters’ counsel (signed copies should be addressed to and delivered to the Underwriters and their counsel), acting reasonably, as to matters respecting the qualification of the Debentures for sale to the public and as to other relevant matters in the Qualifying Jurisdictions and all other relevant jurisdictions; and
(c) in the case of counsel to the Underwriters and to the extent necessary, on the opinion of the Issuer’s counsel or local counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. 13.1 The UnderwritersAgents’ obligations under several, and not joint, nor joint and several, obligation to complete the Closing pursuant to this Agreement will (including the obligation to arrange for the purchase and sale of the Initial Shares at the Closing Time) shall be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofconditions:
(a) the Underwriters will Agents shall have received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualificationscertificate, dated as of the Closing Date Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Agents may agree, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Prospectus (except the Agent Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Shares, the Over- Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Agents shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Agents may agree, addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel Agents with respect to the followingconstating documents of the Company, all resolutions of the Company’s board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Agents may reasonably request;
(c) the Company shall have made and/or obtained all necessary filings, approvals, permits, consents and authorizations to or from, as the case may be, the board of directors and shareholders of the Company, the Securities Regulators, the CSE or the TSXV, as applicable, and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Agents, acting reasonably;
(d) the Agents shall have received favourable legal opinions addressed to the Agents, dated the Closing Date, from ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company’s Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Agents and their counsel, acting reasonably, with respect to the following matters:
(i) the Issuer:incorporation, subsistence and good standing of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Shares, grant the Over-Allotment Option and issue the Broker Securities;
(1ii) is a corporation incorporated the authorized and validly existing issued capital of the Company;
(iii) the Company has all requisite corporate power and capacity under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and existence to carry on its Business business as presently conducted carried on and to own, lease and operate its properties and assets as described in the Final Prospectus;
(iiiv) the Issuer is authorized to issue an unlimited number formation, subsistence and good standing of Shares, of which, as at Reefton Acquisition Corp. under the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities laws of the IssuerProvince of British Columbia, the corporate power and capacity of Reefton Acquisition Corp. under the laws of the Province of British Columbia to carry on its business as presently carried on and to own, lease and operate its properties and assets, and as to the authorized and issued capital of Reefton Acquisition Corp. and the ownership thereof;
(iiiv) to its knowledge, as the execution and delivery of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019Transaction Documents, the 6.25% convertible subordinated unsecured debentures due June 30performance by the Company of its obligations thereunder, 2018 the sale and issuance of the Offered Shares, the grant of the Over-Allotment Option and the 6.75% convertible subordinated unsecured debentures due June 30issuance of the Broker Securities, 2015do not and will not conflict with or result in any breach of the constating documents of the Company, no securities exchangeable any resolutions of the shareholders or convertible into Shares will be issued and outstandingdirectors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(ivvi) each of the Transaction Documents have been duly authorized and executed and delivered by the Company, and constitute valid and legally binding obligations of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, 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 the qualification that the enforceability of rights of indemnity and contribution may be limited by applicable law;
(vii) all necessary corporate action has been taken by the Issuer Company to authorize the creation, issue, sale execution and delivery of each of the Base Shelf Prospectus and the Prospectus Supplement and the filing thereof with the Securities Regulators, the filing of the Marketing Document with the Securities Regulators and the delivery of the U.S. Private Placement Memorandum;
(viii) the Offered Shares, andother than the Over-Allotment Shares issuable at any Option Closing Time, have been duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the Issuer having received Broker Warrants, other than the consideration for Broker Warrants issuable at any Option Closing Time, have been duly and validly created and issued;
(x) the issue thereof, Offered Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares will be duly and validly issued as fully paid and are non-assessable Common Shares;
(xi) all necessary corporate action has been taken by the Company to authorize the issuance of the Over-Allotment Shares, subject to receipt of payment in full for them, and the issuance of the additional Broker Warrants, and when issued and delivered, the Over-Allotment Shares and the additional Broker Warrants will be duly and validly issued by the Company and the Over-Allotment Shares will be outstanding as fully paid and non-assessable shares of the IssuerCommon Shares;
(vxii) all necessary corporate action has been taken the rights, privileges, restrictions and conditions attaching to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings the Over- Allotment Option and the Broker Securities conform in all material respects with any Governmental Entity that have been obtainedthe description thereof set forth in the Prospectus;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xixiii) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under approvals, permits, consents and authorizations of the laws of Securities Regulators in each of the Qualifying Jurisdictions in order have been obtained by the Company to qualify the Offered Shares for distribution and sale to the public of the Offered Shares in each of the Qualifying Jurisdictions through investment dealers or brokers persons who are registered under applicable legislation Canadian Securities Laws and to qualify the grant of the Qualifying Jurisdictions Over- Allotment Option and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading issuance of the Offered Shares subject Broker Warrants to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accountsAgents;
(xiv) the Trust Companyissuance by the Company of the Broker Warrant Shares upon the due exercise of the Broker Warrants is exempt from, at its principal offices or is not subject to, the prospectus requirements of Canadian Securities Laws in Torontothe Qualifying Jurisdictions and no prospectus or other documents are required to be filed, has been duly appointed as proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the registrar and transfer agent with respect to the Shares; andQualifying Jurisdictions in connection therewith;
(xv) the directors first trade in, or resale of, the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities);
(xvi) the statements and opinions concerning tax matters set forth in the Prospectus Supplement under the heading “Eligibility for Investment” insofar as they purport to describe the provisions of the Issuer laws referred to therein are duly appointed.fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and limitations set out under such heading; and
(bxvii) as to such other matters as the Agents’ legal counsel may reasonably request prior to the Closing Time;
(e) the Underwriters will Agents shall have received a favourable legal opinionopinion addressed to the Agents, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, New Zealand counsel to the Company, as to: (i) the incorporation and subsistence of Reefton Gold Limited; (ii) the corporate power and capacity of Reefton Gold Limited under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets; and (iii) the authorized and issued capital of Reefton Gold Limited and the ownership thereof, in a form satisfactory to the Agents and their counsel, acting reasonably;
(f) if any Offered Shares are offered and sold to U.S. Purchasers pursuant to Schedule “A” attached hereto, the Agents shall have received a favourable legal opinion addressed to the Agents, dated the Closing Date, from ▇▇▇▇▇▇▇▇ LLP, United States securities counsel to the Company, such opinion to be subject to customary limitations, standard qualifications and assumptions and qualificationsin form satisfactory to the Agents and their counsel, acting reasonably, to the effect that no registration of the Offered Shares offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Shares to U.S. Purchasers is made in accordance with Schedule “A” attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Shares;
(g) the Agents shall have received favourable legal opinions addressed to the Agents, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, New Zealand counsel to the Company, such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Agents and their counsel, acting reasonably, as to title to the mineral concessions comprising the Reefton Project and the Glamorgan Project;
(h) the Agents shall have received from the Company’s Auditors a letter, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel Date, in form and content substance satisfactory to the reasonable satisfaction of Agents, acting reasonably, bringing forward to a date not more than two Business Days prior to the Underwriters’ counsel with respect Closing Date the information contained in the comfort letter referred to such matters as the Underwriters may reasonably request, including the following:in Section 4(a)(iii);
(i) The Registration Statement and the U.S. Final ProspectusAgents shall have received from the Company’s Former Auditors a letter, dated as of their respective effective or issue datesthe Closing Date, appear on their face to be appropriately responsive in all material respects form and substance satisfactory to the requirements of Agents, acting reasonably, bringing forward to a date not more than two Business Days prior to the U.S. Securities Act, except for Closing Date the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements information contained in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as comfort letter referred to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActSection 4(a)(iv);
(iij) No consentthe Agents shall have received executed copies of all the lock-up agreements requested by the Agents pursuant to Section 6(l) in form and substance satisfactory to the Agents, approval, authorization acting reasonably;
(k) the Agents shall have received certificates of good standing or order of, or filing, registration or qualification with, any Governmental Authority, similar certificates with respect to the jurisdiction in which has not been obtained, taken or made the Company and each of the Subsidiaries are existing;
(other than as required by any state securities laws, l) the Agents shall have received a certificate from the transfer agent and registrar of the Company as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale issued and outstanding Common Shares as at the close of business on the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable Business Day prior to the transactions of Closing Date; and
(m) the type contemplated by this Agreement;Agents shall have received such other documents as the Agents or their counsel may reasonably request prior to the Closing Time.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject following are conditions precedent to the following conditions being fulfilled which are obligations of the Agents to complete the Closing and to arrange for the exclusive benefit purchase of the UnderwritersOffered Shares at the Closing Time, any of and which conditions are to be satisfied by the Company at or prior to the Closing Time and may be waived, waived in writing in whole or in part, part by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofAgents:
(a) the Underwriters will The Agents shall have received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualifications, opinion dated as of the Closing Date Date, in form and substance satisfactory to the Agents, acting reasonably, addressed to the Underwriters Agents from the Issuer’s Blake, C▇▇▇▇▇▇ & G▇▇▇▇▇▇ LLP, Canadian counsel in form and content to the reasonable satisfaction Company, as to the laws of Canada and the Qualifying Jurisdictions, which counsel in turn may rely upon the opinions of local counsel where it deems such reliance proper or alternatively, make arrangements to have such opinions directly addressed to the Agents, and all of such counsel may rely upon, as to matters of fact, certificates of public officials and officers of the Underwriters’ counsel Company, and letters from stock exchange representatives and transfer agents, with respect to the followingfollowing matters:
(i) as to the Issuer:existence and good standing of New Found Gold Corp. under the Business Corporations Act (British Columbia);
(1ii) is a corporation incorporated that New Found Gold Corp. has all requisite corporate power, capacity and validly existing authority under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority incorporation or formation to carry on its businesses as presently carried on and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectus;
(iiiii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly and issued and outstanding as fully paid and non-assessable securities share capital of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingCompany;
(iv) that no authorization, consent or approval of, or filing, registration, permit, license, decree, qualification or recording with, any Governmental Authority in the Qualifying Jurisdictions is required for the performance by the Company of its obligations under this Agreement, the delivery to the Agents of the Offered Shares and, if applicable, the Additional Shares hereunder, the consummation of the transactions contemplated by this Agreement (including, without limitation, the distribution of the Securities in the manner contemplated herein), other than those that have been obtained or made prior to the Closing Time;
(v) that all necessary corporate action has been taken by the Issuer Company to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(vi) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and (ii) the delivery and, if applicable, the execution and filing of, the Preliminary Prospectus, the Final Prospectus, and, if applicable, any Prospectus Amendment, under the Canadian Securities Laws in each of the Qualifying Jurisdictions;
(vi) this Agreement has been duly executed and delivered by the Issuer Company and constitutes a legal, valid and binding obligation of the Issuer Company enforceable against it the Company in accordance with its terms, provided that enforcement may be limited by subject to bankruptcy, insolvency insolvency, reorganization, moratorium and other similar laws of general application affecting the enforcement rights of creditors’ rights generallycreditors generally and subject to other standard assumptions and qualifications, specific performance, injunctive relief and other including the qualifications that equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of indemnity and/or contribution set out in this Agreement may be limited by applicable lawApplicable Law;
(vivii) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery of this Agreement and the fulfilment of the terms hereof by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Company and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) Shares to be issued and sold by the execution Company at the Closing Time and the delivery of this Agreement, and the consummation grant of the Offering, Over-Allotment Option do not and will not:
(1) conflict with or not result in a breach of or a default under, 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 a default under any of the termsunder, conditions or provisions of and do not and will not conflict with: (A) the constating documents of the Issuer or the Company; (B) any resolutions of its the shareholders or directors or Equity Holders or (including of any committee thereof) of the Company; or
or (2C) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order corporate law or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiesSecurities Laws;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions Offered Shares have been duly approved and authorized by all necessary corporate action by validly issued as fully paid and non-assessable shares in the Issuer, and each capital of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the IssuerCompany;
(ix) that the distribution of statements under the Offered Shares complies, in all material respects, with all laws heading “Eligibility for Investment” in the Province of Quebec relating Preliminary Prospectus, and the Final Prospectus are accurate, subject to the use of the French language in connection therewithassumptions, qualifications, limitations and restrictions set out therein;
(x) the Issuer is a reporting issuer or rights, privileges, restrictions and conditions attaching to the equivalent thereof Securities and the Over-Allotment Option are accurately summarized in each Qualifying Jurisdiction where such concept exists and is not all material respects in default under the Canadian Securities Laws of any Qualifying JurisdictionOffering Documents;
(xi) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not on the list of defaulting reporting issuers maintained by the Canadian Securities Regulators;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and taken, all other legal requirements have been fulfilled under the laws of each and all necessary approvals, permits, consents and authorizations of the Qualifying Jurisdictions Canadian Securities Regulators have been obtained, in order each case by the Company to qualify the Offered Shares Securities for distribution and sale to the public in each of the Qualifying Jurisdictions through investment dealers or brokers who are registered in such categories under the applicable legislation laws of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;laws; and
(xiixiii) that the TSX has conditionally common shares of the Company (including all of the Securities) have been approved the for listing and posting for trading on the TSX-V, subject only to customary listing conditions set forth in the conditional approval letter of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange-V dated July 24, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed2020.
(b) The Agents receiving, at the Underwriters will have received a Closing Time, favourable legal opinion, subject to opinions (in customary limitations, assumptions and qualifications, form) dated as of the Closing Date from counsel to the Company as to title matters in respect of the Queensway Gold Project, in form and substance acceptable to the Agents, acting reasonably.
(c) The Agents receiving, at the Closing Time a legal opinion dated the Closing Date, in form and substance acceptable to the Agents, acting reasonably, addressed to the Underwriters Agents (and if required for opinion purposes, counsel to the Agents) from P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, U.S. counsel to the Issuer’s Company, and such counsel may rely upon, as to matters of fact, certificates of public officials and officers of the Company, and letters from stock exchange representatives and transfer agents, that no registration under the 1933 Act is required for the sale of Shares through the U.S. securities counsel Affiliates in the United States in the manner contemplated by this Agreement;
(d) The Agents shall have received from DNTW Toronto LLP at the Closing Time a “bring-down” comfort letter dated the Closing Date, in form and content substance satisfactory to the reasonable satisfaction Agents, acting reasonably, addressed to the Agents and the directors of the Underwriters’ counsel Company, confirming the continued accuracy of the comfort letter to be addressed to the Agents, and the directors of the Company pursuant to Section 7(a)(iv) with such changes as may be necessary to bring the information in such letter forward to a date not more than two Business Days prior to the Closing Date, provided such changes are acceptable to the Agents, acting reasonably.
(e) The Agents shall have received at the Closing Time a certificate dated the Closing Date, addressed to the Agents signed by two senior officers of the Company in form and substance satisfactory to the Agents, acting reasonably, with respect to such matters as the Underwriters may reasonably requestnotice of articles, including articles and other constating documents of the followingCompany, all resolutions of the board of directors of the Company relating to this Agreement and the incumbency and specimen signatures of signing officers of the Company.
(f) The Agents shall have received at the Closing Time a certificate dated the Closing Date, addressed to the Agents and signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company or other senior officers of the Company acceptable to the Agents certifying for and on behalf of the Company and without personal liability after having made due enquiry and after having examined the Final Prospectus, the U.S. Offering Memorandum and any Offering Document Amendment, that:
(i) The Registration Statement since the date as of which information is given in the Final Prospectus there has been no Material Adverse Change and that no material transaction has been entered into by the U.S. Company other than as disclosed in the Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included Offering Memorandum or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Actany Offering Document Amendment;
(ii) No consentthe Final Prospectus and U.S. Offering Memorandum (except any Agents’ Information) (i) do not contain a misrepresentation and contain full, approvaltrue and plain disclosure of all material facts relating to the Securities and the Company, authorization and (ii) do not contain an untrue statement of a material fact or omit to state a material fact that is required to be stated or that is necessary in order ofto make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) no order, ruling or filingdetermination having the effect of ceasing the trading or suspending the sale of the Securities or any other securities of the Company has been issued by any Governmental Authority and no proceedings for that purpose have been instituted or are pending or, registration to the knowledge of such officers, contemplated or qualification with, threatened by any Governmental Authority, which ;
(iv) the Company has not been obtained, taken complied in all material respects with the terms and conditions of this Agreement on its part to be complied with at or made prior to the Closing Time; and
(other than as required by any state securities laws, as to which such counsel expresses no opinionv) is required under any Applicable Law for the issuance or sale representations and warranties of the Offered Shares Company contained in this Agreement and in any certificates or the performance other documents delivered by the Issuer of its obligations under Company pursuant to or in connection with this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body Agreement are true and correct in all material respects as of the United States of America. For purposes of this opinion, Closing Time with the term “Applicable Law” means those laws, rules same force and regulations effect as if made at and as of the United States of America, in each case which are normally applicable Closing Time after giving effect to the transactions of the type contemplated by this Agreement;, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they will be true and correct in all material respects as of that date only and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects; and all of those matters will in fact be true and correct as at the Closing Time.
(g) The Company shall have complied in all material respects with the terms and conditions of this Agreement on its part to be complied with at or prior to the Closing Time.
(h) The Company will have made and/or obtained all necessary filings, approvals, permits, consents and acceptances to or from, as the case may be, the board of directors, the Canadian Securities Regulators, the TSX-V, and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Company and the Agents, acting reasonably, prior to the Closing Date, it being understood that the Agents will do all that is reasonably required to assist the Company to fulfil this condition.
(i) The representations and warranties of the Company contained in this Agreement and in any certificates or other documents delivered by the Company pursuant to or in connection with this Agreement shall be true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they will be true and correct in all material respects as of that date only and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects.
(j) Subject to the last sentence of this paragraph, each of the persons identified in Schedule C, such persons being shareholders of the Company holding at least 5% of the common shares of the Company at Closing, and each of the Company’s senior officers and directors, will have executed a lock-up agreement in the form set forth in Schedule D and the Agents will have received a copy thereof. The Agents acknowledge that the Company will use commercially reasonable efforts to obtain lock-up agreements from certain shareholders controlled by or affiliated with E▇▇▇ ▇▇▇▇▇▇ or R▇▇ ▇▇▇▇▇▇.
(k) The common shares of the Company (including all of the Securities) shall have been approved for listing and posting for trading on the TSX-V on or before the Business Day immediately preceding the Closing Date, subject only to the satisfaction by the Company of customary post-closing conditions imposed by the TSX-V in similar circumstances.
(l) The Agents will have received a certificate from Computershare Investor Services Inc. with respect to its appointment as transfer agent and registrar of the common shares of the Company and the number of common shares of the Company issued and outstanding as at the end of the Business Day immediately prior to the Closing Date.
(m) The Agents will have received a certificate of compliance or the equivalent in respect of the Company issued by the appropriate regulatory authorities in British Columbia dated within one Business Day prior to the Closing Date.
(n) The Agents shall have received the Agents’ Commission.
(o) The Agents shall have received such other closing certificates, opinions, receipts, agreements or documents as the Agents or their counsel may reasonably request.
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will Underwriter's obligation to purchase any Offered Shares at the Closing Time shall be subject to conditional upon the fulfilment at or before the Closing Time of the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofconditions:
(a) the Underwriters will Underwriter shall have received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualificationscertificate, dated as of the Closing Date addressed to Date, signed by the Underwriters from the Issuer’s Canadian counsel in form Chief Executive Officer and content to the reasonable satisfaction Chief Financial Officer of the Underwriters’ counsel with respect to Company, or such other officers of the followingCompany as the Underwriter may agree, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the Issuereffect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Final Prospectus (except the Underwriter Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Shares, the Over-Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriter shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriter may agree, addressed to the Underwriter with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriter may reasonably request;
(c) the Company shall have made and/or obtained all necessary filings, approvals, permits, consents and authorizations to or from, as the case may be, the board of directors and shareholders of the Company, the Securities Regulators, the TSXV, and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Underwriter, acting reasonably;
(d) the Offered Shares and the Broker Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriter shall have received favourable legal opinions addressed to the Underwriter, dated the Closing Date, from Forooghian + Company Law Corporation, counsel to the Company, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, with respect to the following matters:
(1i) is a corporation incorporated as to the subsistence of the Company under the laws of the Province of British Columbia and validly existing as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Shares, grant the Over-Allotment Option and issue the Broker Securities;
(ii) as to the authorized and issued capital of the Company;
(iii) the Company has all requisite corporate power and capacity under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and existence to carry on its Business business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized carried on and to issue an unlimited number of Sharesown, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued lease and outstanding as fully paid operate its properties and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingassets;
(iv) all necessary corporate action has been taken the execution and delivery of the Transaction Documents, the performance by the Issuer to authorize Company of its obligations thereunder, the creation, issue, sale and delivery issuance of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares grant of the IssuerOver-Allotment Option and the issuance of the Broker Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) all necessary corporate action has been taken to authorize each of the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has Transaction Documents have been duly authorized and executed and delivered by the Issuer Company, and constitutes a legal, constitute valid and legally binding obligation obligations of the Issuer Company enforceable against it in accordance with its terms, provided that except as enforcement thereof may be limited by bankruptcy, insolvency and other insolvency, liquidation, reorganization, moratorium or similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and other except as limited by the application of equitable principles when equitable remedies may be granted only in are sought, and the discretion qualification that the enforceability of a court of competent jurisdiction and that rights of indemnity and/or and contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with all necessary corporate action has been taken by the Company to authorize the execution and delivery by of each of the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Preliminary Prospectus and the consummation by Final Prospectus and the Issuer filing thereof with the Securities Regulators, the filing of the Offering, including Marketing Document with the creation, issuance, sale Securities Regulators and the delivery of each of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtainedpreliminary and final U.S. Private Placement Memorandum;
(vii) the execution Offered Shares, other than the Additional Shares issuable at any Option Closing Time, have been duly and validly issued as fully paid and non-assessable Common Shares in the delivery of this Agreement, and the consummation capital of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiesCompany;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions Broker Warrants have been duly approved and authorized by all necessary corporate action by validly created and, other than the IssuerBroker Warrants issuable at any Option Closing Time, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuerissued;
(ix) the distribution Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Offered Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares complies, in all material respects, with all laws will be duly and validly issued as fully paid and non-assessable Common Shares in the Province of Quebec relating to the use capital of the French language in connection therewithCompany;
(x) all necessary corporate action has been taken by the Issuer is a reporting issuer or Company to authorize the equivalent thereof issuance of the Additional Shares, subject to receipt of payment in each Qualifying Jurisdiction where such concept exists full for them, and is not the issuance of the additional Broker Warrants, and when issued and delivered, the Additional Shares and the additional Broker Warrants will be duly and validly issued by the Company and the Additional Shares will be outstanding as fully paid and non-assessable Common Shares in default under the Canadian Securities Laws capital of any Qualifying Jurisdictionthe Company;
(xi) the rights, privileges, restrictions and conditions attaching to the Offered Shares, the Over-Allotment Option and the Broker Securities conform in all material respects with the description thereof set forth in the Final Prospectus;
(xii) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under approvals, permits, consents and authorizations of the laws of Securities Regulators in each of the Qualifying Jurisdictions in order have been obtained by the Company to qualify the Offered Shares for distribution and sale to the public of the Offered Shares in each of the Qualifying Jurisdictions through investment dealers or brokers persons who are registered under applicable legislation Canadian Securities Laws and to qualify the grant of the Qualifying Jurisdictions Over-Allotment Option and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading issuance of the Offered Shares subject Broker Warrants to fulfilling the Standard Listing Conditions by the date required by the TSXUnderwriter;
(xiii) provided the Offered issuance by the Company of the Broker Warrant Shares are listed on a designated stock exchangeupon the due exercise of the Broker Warrants is exempt from, as defined or is not subject to, the prospectus requirements of Canadian Securities Laws in the Tax ActQualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accountsQualifying Jurisdictions in connection therewith;
(xiv) the Trust Companyfirst trade in, at its principal offices or resale of, the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in Torontothe Qualifying Jurisdictions and no filing, has been duly appointed proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as the registrar and transfer agent with respect to the Shares; anddefined in National Instrument 45-102 - Resale of Securities);
(xv) the directors Offered Shares and Broker Warrant Shares have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the Issuer are duly appointed.TSXV; and
(bxvi) as to such other matters as the Underwriter's legal counsel may reasonably request prior to the Closing Time;
(f) the Underwriters will Underwriter shall have received a favourable legal opinionopinion addressed to the Underwriter, dated the Closing Date, from Forooghian + Company Law Corporation, as to: (i) the incorporation and subsistence of Canam, (ii) the corporate power and capacity of Canam under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam and the ownership thereof, in a form satisfactory to the Underwriter and its counsel, acting reasonably;
(g) the Underwriter shall have received a favourable legal opinion addressed to the Underwriter, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, tax counsel to the Company, such opinion to be subject to customary limitationsstandard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Final Prospectus under the heading "Eligibility for Investment" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and qualificationslimitations set out under such heading;
(h) if any Offered Shares are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriter shall have received a favourable legal opinion addressed to the Underwriter, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, to the effect that no registration of the Offered Shares offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Shares to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Shares;
(i) the Underwriter shall have received a favourable legal opinion addressed to the Underwriter, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, as to title to the mineral concessions comprising the ▇▇▇▇▇▇ Property;
(j) the Underwriter shall have received from the Company's Auditors a letter, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel Date, in form and content substance satisfactory to the reasonable satisfaction Underwriter, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(k) the Underwriter shall have received executed copies of all the Underwriters’ counsel lock-up agreements requested by the Underwriter pursuant to Section 6(l) in form and substance satisfactory to the Underwriter, acting reasonably;
(l) the Underwriter shall have received certificates of good standing or similar certificates with respect to such matters as the Underwriters may reasonably request, including jurisdiction in which the following:
(i) The Registration Statement Company and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActCanam are existing;
(iim) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, the Underwriter shall have received a certificate from the transfer agent and registrar of the Company as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale issued and outstanding Common Shares as at the close of business on the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable Business Day prior to the transactions of Closing Date; and
(n) the type contemplated by this Agreement;Underwriter shall have received such other documents as the Underwriter or its counsel may reasonably request prior to the Closing Time.
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will of the Underwriter and any Substituted Purchasers to complete the purchase of Units as contemplated hereby shall be subject conditional upon the Underwriter being satisfied, acting reasonably, with the results of its due diligence investigations relating to the following conditions being fulfilled which are for Company and upon the exclusive benefit fulfilment at or before the Closing Time of the Underwritersfollowing conditions, any of which may conditions the Company covenants to use its best efforts to fulfil or cause to be waived, in whole or in part, by fulfilled prior to the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofClosing Time:
(a) the Underwriters will execution and delivery of this Agreement and the Subscription Agreements and the creation and issuance of the Shares and Warrants underlying the Units shall have been duly authorized by all necessary corporate action;
(b) all necessary consents and approvals with respect to the sale and issuance of the Shares and Warrants underlying the Units shall have been obtained;
(c) the Underwriter shall have received certificates, in form and substance satisfactory to the Underwriter, stating that the Company is not in default under the Securities Laws;
(d) the Underwriter shall have received a legal opinion, subject certificate addressed to customary limitations, assumptions it and qualificationsto the Substituted Purchasers, dated as of the Closing Date addressed Date, signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, or such other officers of the Company as the Underwriter may accept, certifying on behalf of the Company to the Underwriters from effect that, except as has been generally disclosed at the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the followingdate thereof:
(i) there has not been any material adverse change since June 30, 2000 in relation to the Issuer:
(1) is Company and its subsidiary on a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectusconsolidated basis;
(ii) since June 30, 2000 there have been no material transactions entered into by the Issuer Company or its subsidiary other than transactions in the ordinary course of business that would not constitute a material change;
(iii) neither the Company nor any of its subsidiary has any undisclosed contingent liability that is authorized material to issue the Company;
(iv) no event of default under any agreement or instrument pursuant to which indebtedness of the Company or its subsidiary has been created, and no event which with the giving of notice or the passage of time, or both, would constitute an unlimited number event of Sharesdefault under any such agreement or instrument, has occurred and is continuing and no default under any agreement or instrument to which the Company or its subsidiary is a party or subject will occur as a result of whichthe issue, sale and distribution of the Shares and Warrants underlying the Units, the entry into of this Agreement and the Subscription Agreements or the performance by the Company of its obligations hereunder and thereunder;
(v) there are no actions, suits or proceedings, whether on behalf of or against the Company or its subsidiary, pending or, to the knowledge of the Company, threatened against or affecting the Company or its subsidiary at law or in equity, before or by any court or federal, state, municipal or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Company and which are material to the Company;
(vi) the representations and warranties of the Company contained herein and in the Subscription Agreements are true and correct and all the terms and conditions relating to the Company contained herein and required to be performed and complied with by the Company at the time of such certificate have been performed and complied with by the Company; and
(vii) no order ceasing or suspending trading in securities of the Company or prohibiting the sale and issuance or distribution of the Shares or Warrants underlying the Units has been issued and no proceedings for such purpose are pending or, to the knowledge of the Company, threatened; and
(e) as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued all covenants, agreements and outstanding as fully paid and non-assessable securities obligations of the Issuer;
(iii) Company hereunder and under the Subscription Agreements required to its knowledge, as of be performed or complied with on or before the Closing Time shall have been so performed or complied with and all conditions required to be complied with by the Company shall have been complied with. The certificates described above required to be delivered at the Closing Time will also be addressed and delivered to such persons to whom the Underwriter may resell the Units after the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and provided they are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, identified at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;Time.
Appears in 1 contract
Conditions of Closing. 13.1 9.1 The Underwriters’ obligations under this Agreement obligation of the Underwriters to purchase the Underwritten Shares will be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereoffollowing:
(a) the Underwriters will have having received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date opinion addressed to the Underwriters and their counsel dated and delivered the Closing Date from the IssuerCorporation’s Canadian Counsel, ▇▇▇▇▇▇ ▇▇▇▇ Canada LLP, and from local counsel (in respect of matters governed by laws of the Qualifying Jurisdictions where the Corporation’s Canadian counsel is not qualified to practice law), in each case in form and content substance satisfactory to the reasonable satisfaction of the Underwriters’ counsel Underwriters and their counsel, acting reasonably, with respect to the followingfollowing matters, subject to such reasonable assumptions and qualifications customary with respect to transactions of this nature:
(i) the Issuer:Corporation is a “reporting issuer”, or its equivalent, in each of the provinces of British Columbia, Alberta and Ontario and it is not listed as in default of any requirement of the Applicable Securities Laws in any of the provinces which maintain such a list;
(1ii) the Corporation is a corporation incorporated and validly existing under the laws of its jurisdiction the Province of incorporation; and
(2) Ontario and has all necessary requisite corporate power, authority power and capacity to own or lease its property and assets and to carry on its Business business as presently now conducted as described and to own, lease and operate its property and assets;
(iii) the authorized and issued and outstanding capital of the Corporation;
(iv) the rights, privileges, restrictions and conditions attaching to the Securities are accurately summarized in all material respects in the Final Prospectus;
(iiv) the Issuer is authorized to issue an unlimited number of SharesUnderwritten Shares have been duly and validly authorized;
(vi) upon full payment therefor, of which, as at the Closing Time, such numbers of Underwritten Shares as noted in the Canadian Final Prospectus will be have been validly issued and outstanding as fully paid and non-assessable securities shares in the capital of the IssuerCorporation;
(iiivii) to its knowledge, as the form and terms of the Closing Time, except for definitive certificate representing the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 Common Shares and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued Broker Warrants have been approved by the directors of the Corporation and outstandingcomply in all material respects with the Business Corporations Act (Ontario) the articles and by-laws of the Corporation and the rules of the TSXV and the NYSE;
(ivviii) the Corporation has all necessary corporate power and capacity:
(i) to execute and deliver this Agreement and perform its obligations under this Agreement; and (ii) to issue and sell the Underwritten Shares;
(ix) the issuance of the Common Shares underlying the Broker Warrants to the Underwriters upon the due exercise of the Broker Warrants in accordance with their terms and conditions is exempt from the prospectus requirements under Applicable Securities Laws;
(x) the first trade in, or resale of the Common Shares issuable upon the exercise of the Broker Warrants is not subject to the prospectus requirements of the Applicable Securities Laws;
(xi) all necessary corporate action has been taken by the Issuer Corporation to authorize and reserve for issuance the creationCommon Shares underlying the Broker Warrants and, issue, sale and delivery upon due exercise of the Offered Shares, andBroker Warrants and payment of the exercise price therefor in accordance with its terms, the Issuer having received Common Shares underlying the consideration for the issue thereof, Offered Shares have been Broker Warrants will be validly issued and are outstanding as fully fully-paid and non-assessable shares of the IssuerCommon Shares;
(vxii) the Corporation has all necessary corporate power and capacity: (A) to execute and deliver this Agreement and the Broker Warrant certificates, and perform its obligations under this Agreement and the Broker Warrant certificates, and (B) to issue and sell the Underwritten Shares;
(xiii) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus Amendment, the Final Prospectus and, if applicable, any Supplementary Material and the filing thereof with the Securities Commissions and to authorize the delivery of the U.S. Private Placement Memorandum;
(xiv) all necessary corporate action has been taken by the Issuer Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunderBroker Warrant certificates, and this Agreement has and the Broker Warrant certificates have been duly executed and delivered by the Issuer Corporation and constitutes this Agreement and the Broker Warrant certificates each constitute a legal, valid and binding obligation of the Issuer Corporation enforceable against it in accordance with its terms, provided that enforcement may be limited by subject to bankruptcy, insolvency and other similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of indemnity and/or contribution set out in this Agreement may be limited by applicable lawlaws;
(vixv) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery of this Agreement and the Broker Warrant certificates, the fulfillment of the terms hereof by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Corporation and the consummation by the Issuer of the Offering, including the creationoffering, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations Underwritten Shares do not and will not result in a breach of or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreementdefault under, and the consummation do not and will not create a state of the Offeringfacts which, will not:
(1) conflict with after notice or result in lapse of time or both, will result in a breach of or default under under, and do not and will not conflict with any of the terms, conditions or provisions of the constating documents articles or by-laws of the Issuer or the Corporation, any resolutions of its the shareholders or directors or Equity Holders (or any committee thereof; or
(2) conflict with of the Corporation or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertieslaws;
(viiixvi) each of the Canadian Preliminary Prospectus, Transfer Agent is the Canadian Amended Preliminary Prospectus duly appointed registrar and transfer agent for the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the IssuerCommon Shares;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xixvii) all necessary documents have been filed, all requisite proceedings have been taken and all other legal approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained and all necessary requirements of Applicable Securities Law have been fulfilled under to qualify the laws distribution of the Over-Allotment Option and the Underwritten Shares in each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers persons who are registered under applicable legislation of the Qualifying Jurisdictions Applicable Securities Laws and who have complied with the relevant provisions of such applicable legislationlaws;
(xiixviii) subject only to standard listing conditions, the TSX has Underwritten Shares and the Common Shares underlying the Broker Warrants, if and when issued, have been conditionally listed or approved for listing on the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSXTSXV;
(xiiixix) provided the Offered Underwritten Shares are and the Common Shares underlying the Broker Warrants, if and when issued, have been listed on a designated stock exchangethe NYSE, subject only to official notice of issuance on the NYSE;
(xx) as to the accuracy of the statements in the Prospectus under the heading “Eligibility For Investment”;
(xxi) no consent, approval, authorization, order, registration or qualification of, or filing, registration or recording with, any court, regulatory body or government agency or body under the laws of Ontario and the federal laws of Canada is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for those which may be required and have been obtained under the Applicable Securities Laws of Ontario; and
(xxii) as to all other legal matters reasonably requested by counsel to the Underwriters at least forty-eight (48) hours prior to the Closing Time. In connection with such opinion, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Underwriters, acting reasonably, as defined to the qualification for distribution of the Underwritten Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the Tax circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) if any Underwritten Shares and Additional Shares, if applicable, are offered by the Underwriters through their U.S. Affiliates or a Selling Firm in transactions requiring an exemption from the registration requirements under the U.S. Securities Act, the Offered Underwriters shall receive at the Closing Time a legal opinion addressed to the Underwriters and their counsel dated and delivered the Closing Date from the Corporation’s U.S. counsel, ▇▇▇▇▇▇ & Whitney LLP, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to the effect that registration of the Underwritten Shares will be qualified investments and the Additional Shares, if applicable, under the Tax U.S. Securities Act is not required for trusts governed the offer and sale of the Underwritten Shares and the Additional Shares, if applicable, in the United States in the manner contemplated by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accountsthis Agreement;
(xivc) the Trust CompanyUnderwriters having received at the Closing Time favourable legal opinions addressed to the Underwriters and their counsel dated and delivered the Closing Date from foreign counsel in form and content acceptable to the Underwriters and their legal counsel, at its principal offices in Torontoacting reasonably, has been duly appointed as the registrar and transfer agent with respect to the SharesMaterial Subsidiary relating to: (i) the due incorporation and good standing under the laws of the applicable jurisdiction and qualification to carry on business in such jurisdictions where the Material Subsidiary carries on business; (ii) the issued and outstanding share capital; (iii) the ownership of the issued and outstanding shares; and (iv) such other matters as the Underwriters may require, acting reasonably;
(d) the Underwriters having received at the Closing Time a favourable legal opinion addressed to the Underwriters and their counsel dated and delivered the Closing Date from DRC counsel in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the title of the Ngayu Project and the North Kivu Project as well as the Corporation’s ability to conduct the activities it is presently and anticipated to be conducting in respect thereof;
(e) the Underwriters having received a certificate dated the Closing Date signed by the President and Chief Executive Officer and the Chief Financial Officer of the Corporation or any other senior officers of the Corporation, on behalf of the Corporation and not in his personal capacity, as may be acceptable to the Underwriters, acting reasonably, with respect to:
(i) the articles and by-laws of the Corporation;
(ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Underwritten Shares to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and
(xviii) the directors incumbency and signatures of signing officers of the Issuer are duly appointed.Corporation;
(bf) the Corporation causing the Auditors to deliver to the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualificationscomfort letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two (2) Business Days prior to the Closing Date the information contained in the comfort letter referred to in Subsection 4.1(ii) hereof;
(g) the Corporation having delivered to the Underwriters, at the Closing Time, certificates dated the Closing Date addressed to the Underwriters from and signed by the Issuer’s U.S. securities counsel in form President and content Chief Executive Officer of the Corporation and the Chief Financial Officer of the Corporation, or such other senior officer(s) of the Corporation as may be acceptable to the reasonable satisfaction Underwriters, certifying for and on behalf of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably requestCorporation and without personal liability, including the followingafter having made due enquiries:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive Corporation having complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActClosing Time;
(ii) No consentthe representations and warranties of the Corporation contained herein being true and correct in all material respects as at the Closing Time, approvalwith the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) receipts having been issued by the Securities Commission in the Qualifying Jurisdictions for the Prospectus and no order, authorization ruling or order ofdetermination having the effect of ceasing the trading or suspending the sale of the Common Shares to be issued and sold by the Corporation has been issued and no proceedings for such purpose have been instituted or are pending or, contemplated or filingthreatened; and
(iv) since the respective dates as of which information is given in the Prospectus (A) there having been no material change (actual, registration anticipated, contemplated or qualification withthreatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation, and (B) no transaction having been entered into by any Governmental Authorityof the Corporation or its Material Subsidiary which could reasonably be expected to have a Material Adverse Effect, which has not been obtained, taken or made (other than as required disclosed in the Prospectus; and
(h) the Underwriters shall have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the Underwritten Shares issuable by any state securities lawsthe Corporation to be (i) conditionally listed on the TSXV, subject only to the standard listing conditions, and (ii) listed on the NYSE, subject only to official notice of issuance on the NYSE;
(i) the Underwriters shall have received duly executed original Broker Warrant certificates in form and substance satisfactory to the Underwriters, acting reasonably;
(j) the Underwriters shall have received a certificate from the Transfer Agent as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date; and
(k) the Underwriters shall have received a certificate of status or the equivalent in respect of the Corporation and its subsidiaries issued by the appropriate regulatory authority in the jurisdiction in which such counsel expresses no opinion) entity is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;incorporated.
Appears in 1 contract
Conditions of Closing. 13.1 8.1 The Underwriters’ obligations under this Agreement of the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date will be conditional upon and subject to the accuracy of the representations and warranties on the part of the Corporation set forth in Section 7.1 hereof as of each Representation Date, as though then made, and to each of the following conditions being fulfilled at or prior to the Time of Closing which are for conditions the exclusive benefit Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of the UnderwritersClosing and which conditions in paragraphs (c), any of which (d), (f), (g), (h) and (i) may be waived, waived in writing in whole or in part, part by the Lead Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Underwriters will Preliminary Prospectus and the Prospectus shall have received a legal opinionbeen filed with the Canadian Securities Regulators, subject to customary limitationsand the Corporation shall have made or obtained all other necessary filings, assumptions approvals, consents and qualifications, dated as acceptances of the Canadian Securities Regulators required to be made or obtained by the Corporation prior to the Time of Closing Date in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the Indenture, the issuance of the Notes, the Prospectus and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Lead Underwriters) addressed to the Underwriters from and dated the Issuer’s Canadian counsel Closing Date in form and content satisfactory to the reasonable satisfaction of the Lead Underwriters’ counsel with respect to the following, certifying that:
(i) the Issuer:
(1) Prospectus is a corporation incorporated true and validly existing under the laws of its jurisdiction of incorporation; and
(2) has correct in all necessary corporate power, authority material respects and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectuscontains no misrepresentation;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued no Material Adverse Change has occurred and outstanding as fully paid and non-assessable securities no transaction out of the Issuer;
(iii) ordinary course of business and of a nature material to its knowledge, as the Corporation has been entered into or announced since the date of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingProspectus;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;
Appears in 1 contract
Sources: Underwriting Agreement (Algonquin Power & Utilities Corp.)
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject to the following conditions being fulfilled which are for the exclusive benefit It is a condition of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the following:
that (i) all documents required to be completed and signed in accordance with Section 2 hereof be received on or prior to the Issuer:
(1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate powerClosing Date, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized Company will have obtained all necessary approvals and consents, including regulatory, court and Exchange approvals, to issue an unlimited number of Sharesthe purchase and sale contemplated by this Subscription Agreement, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as the issue and sale of the Closing TimeSecurities contemplated by this Subscription Agreement be exempt from the requirement to file a prospectus and any requirement to deliver an offering memorandum under applicable Securities Laws relating to the sale of the Securities, except for or the 6.25% convertible subordinated unsecured debentures due June 30Company will have received such orders, 2019, consents or approvals as may be required to permit such sale without the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable requirement to file a prospectus or convertible into Shares will be issued and outstanding;
deliver an offering memorandum; (iv) all necessary corporate action has been taken by the Issuer Company's counsel shall have delivered a legal opinion addressed to authorize the creationSubscriber and its solicitors respecting, issueamong other matters, sale the due incorporation and organization of the Company, the due authorization, execution and delivery of this Subscription Agreement and the Offered Shares, andInvestment Agreement, the Issuer having received authorized capital of the consideration for Company, the issue thereof, Offered due allotment and issuance of the Shares have been validly issued and are outstanding to the Subscriber as fully paid and non-assessable shares and the restrictions on the transferability of the Issuer;
Securities under Canadian Securities Laws, all in form and substance satisfactory to the Subscriber's solicitors, acting reasonably; and (v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided rules of the Offered Shares are listed on a designated stock exchange, as defined in the Tax ActExchange, the Offered Company will have obtained conditional approval of the Exchange for the listing of the Shares and the Warrant Shares which, in any event will be qualified investments under listed upon Closing. The Subscriber acknowledges that the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) Company may be required to provide the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect Securities Regulators or other authorities pursuant to the Shares; and
Proceeds of Crime (xvMoney Laundering) and Terrorist Financing Act (Canada) (the directors “PCMLTFA”) with a list setting forth the identity of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as beneficial purchaser of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;Units.
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will ' obligation to purchase any Initial Shares at the Closing Time shall be subject to conditional upon the fulfilment at or before the Closing Time of the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofconditions:
(a) the Underwriters will shall have received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualificationscertificate, dated as of the Closing Date addressed to Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters from the Issuer’s Canadian counsel in form may agree, certifying for and content to the reasonable satisfaction on behalf of the Underwriters’ counsel with respect to the followingCompany that:
(i) no order, ruling or determination having the Issuereffect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Prospectus (except the Underwriters Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Securities, the Over-Allotment Option and the Compensation Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriters may reasonably request;
(c) the Company shall have made and/or obtained all necessary filings, approvals, permits, consents and authorizations to or from, as the case may be, the board of directors and shareholders of the Company, the Securities Regulators, the TSXV, the NYSE and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Underwriters, acting reasonably;
(d) the Offered Securities and the Compensation Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, counsel to the Company, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and their counsel, acting reasonably, with respect to the following matters:
(1i) is a corporation incorporated as to the incorporation and validly existing subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Securities, grant the Over-Allotment Option and issue the Compensation Securities;
(ii) as to the authorized and issued capital of the Company;
(iii) the Company has all requisite corporate power and capacity under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and existence to carry on its Business business as presently conducted carried on and to own, lease and operate its properties and assets as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale execution and delivery of the Offered Shares, andTransaction Documents, the Issuer having received performance by the consideration for Company of its obligations thereunder, the issue thereof, Offered Shares have been validly issued sale and are outstanding as fully paid and non-assessable shares issuance of the IssuerOffered Securities, the grant of the Over-Allotment Option and the issuance of the Compensation Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) all necessary corporate action has been taken to authorize each of the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has Transaction Documents have been duly authorized and executed and delivered by the Issuer Company, and constitutes a legal, constitute valid and legally binding obligation obligations of the Issuer Company enforceable against it in accordance with its terms, provided that except as enforcement thereof may be limited by bankruptcy, insolvency and other insolvency, liquidation, reorganization, moratorium or similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and other except as limited by the application of equitable principles when equitable remedies may be granted only in are sought, and the discretion qualification that the enforceability of a court of competent jurisdiction and that rights of indemnity and/or and contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with all necessary corporate action has been taken by the Company to authorize the execution and delivery by of each of the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Base Shelf Prospectus and the consummation by Prospectus Supplement and the Issuer filing thereof with the Securities Regulators, the filing of the Offering, including Marketing Document with the creation, issuance, sale Securities Regulators and the delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtainedU.S. Private Placement Memorandum;
(vii) the execution Offered Securities, other than the Over-Allotment Shares issuable at any Option Closing Time, have been duly and the delivery of this Agreement, validly issued as fully paid and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiesnon-assessable Common Shares;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions Compensation Warrants have been duly approved and authorized by all necessary corporate action by validly created and, other than the IssuerCompensation Warrants issuable at any Option Closing Time, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuerissued;
(ix) the distribution Compensation Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Offered Shares complies, Compensation Warrants in all material respects, accordance with all laws in the Province of Quebec relating to the use provisions of the French language in connection therewithCompensation Warrant Certificates, the Compensation Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(x) all necessary corporate action has been taken by the Issuer is a reporting issuer or Company to authorize the equivalent thereof issuance of the Over-Allotment Shares, subject to receipt of payment in each Qualifying Jurisdiction where such concept exists full for them, and is not in default under the Canadian Securities Laws issuance of any Qualifying Jurisdictionthe additional Compensation Warrants, and when issued and delivered, the Over-Allotment Shares and the additional Compensation Warrants will be duly and validly issued by the Company and the Over-Allotment Shares will be outstanding as fully paid and non-assessable Common Shares;
(xi) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Over-Allotment Option and the Compensation Securities conform in all material respects with the description thereof set forth in the Prospectus;
(xii) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under approvals, permits, consents and authorizations of the laws of applicable Securities Regulators in each of the Qualifying Offering Jurisdictions in order have been obtained by the Company to qualify the Offered Shares for distribution and sale to the public of the Offered Securities in each of the Offering Jurisdictions through investment dealers or brokers persons who are registered under applicable legislation Canadian Securities Laws and to qualify the grant of the Qualifying Jurisdictions Over-Allotment Option and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading issuance of the Offered Shares subject Compensation Warrants to fulfilling the Standard Listing Conditions by the date required by the TSXUnderwriters;
(xiii) provided the Offered issuance by the Company of the Compensation Warrant Shares are listed on a designated stock exchangeupon the due exercise of the Compensation Warrants is exempt from, as defined or is not subject to, the prospectus requirements of applicable Canadian Securities Laws in the Tax ActOffering Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws of the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accountsOffering Jurisdictions in connection therewith;
(xiv) the Trust Companyfirst trade in, at its principal offices or resale of, the Compensation Warrant Shares is exempt from, or is not subject to, the prospectus requirements of applicable Canadian Securities Laws in Torontothe Offering Jurisdictions and no filing, has been duly appointed proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as the registrar and transfer agent with respect to the Shares; anddefined in National Instrument 45-102 - Resale of Securities);
(xv) the directors Offered Securities, and Compensation Warrant Shares have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the Issuer are duly appointed.TSXV; and
(bxvi) as to such other matters as the Underwriters' legal counsel may reasonably request prior to the Closing Time;
(f) the Underwriters will shall have received a favourable legal opinionopinion addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, as to: (i) the incorporation and subsistence of Canam, Vizsla Royalties and Panuco Royalty, (ii) the corporate power and capacity of Canam, Vizsla Royalties and Panuco Royalty under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam, Vizsla Royalties and Panuco Royalty and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(g) the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, tax counsel to the Company, such opinion to be subject to customary limitationsstandard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Prospectus Supplement under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and qualificationslimitations set out under such heading;
(h) if any Offered Securities are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that no registration of the Offered Securities offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Securities to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Securities;
(i) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, as to title to the mineral concessions comprising the Panuco Property;
(j) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, with respect to (i) the incorporation and subsistence of Minera Canam and Canam Royalties, (ii) the corporate power and capacity of Minera Canam and Canam Royalties under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Minera Canam and Canam Royalties and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(k) the Underwriters shall have received from the Company's Auditors a letter, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel Date, in form and content substance satisfactory to the reasonable satisfaction Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(l) the Underwriters shall have received executed copies of all the lock-up agreements requested by the Underwriters pursuant to Section 6(l) in form and substance satisfactory to the Underwriters’ counsel , acting reasonably;
(m) the Underwriters shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company, Canam, Vizsla Royalties, Panuco Royalty, Minera Canam and Canam Royalties are existing;
(n) the Underwriters shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(o) the Underwriters shall have received such matters other documents as the Underwriters or its counsel may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects request prior to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;Closing Time.
Appears in 1 contract
Conditions of Closing. 13.1 (1) The Underwriters’ obligations of the Underwriters and the Agents under this Agreement are subject to the accuracy of the representations and warranties of the Company contained in this Agreement both as of the date of this Agreement and the Closing Time, as the case may be, the performance by the Company of its obligations under this Agreement will be subject to and receipt by the following conditions being fulfilled which are for the exclusive benefit Broker Dealers, on behalf of the UnderwritersUnderwriters and the Agents, any at the Closing Time, of which may be waivedthe following, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofother than as provided below:
(a) the Underwriters will have received a favourable legal opinion, subject to customary limitations, assumptions and qualifications, opinion dated as of the Closing Date from the Company’s Counsel, addressed to the Underwriters from Agents and the Issuer’s Canadian counsel Underwriters, in form and content substance satisfactory to the reasonable satisfaction Broker Dealers, on behalf of the Agents and the Underwriters’ , acting reasonably, together with corresponding opinions (where relevant) of local counsel with respect to the following:Company in relation to the laws of the Selling Jurisdictions in Canada in which the Offered Securities are sold;
(b) a favourable legal opinion dated the Closing Date from the Company’s Counsel, addressed to the Agents and the Underwriters, in form and substance satisfactory to the Broker Dealers, on behalf of the Agents and the Underwriters, acting reasonably, (i) that each of the Issuer:
(1) Company and each Company Material Subsidiary is a corporation incorporated and company validly existing under the laws of its jurisdiction of incorporation; and
(2ii) that each of the Company and Company Material Subsidiary has all necessary the corporate power, authority power and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described business and to own, lease and operates and its properties and assets and in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities respect of the Issuer;
Company, to execute, deliver and perform its obligations under the Transaction Agreements; (iii) with respect to its knowledge, as the authorized capital of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 Company and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
each Company Material Subsidiary; (iv) all necessary corporate action has been taken by that the Issuer to authorize the creation, issue, sale execution and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement Transaction Agreements and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered the transactions contemplated by the Issuer Transaction Agreements do not and constitutes will not result in a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order breach of, and no filingdo not create a state of facts which, registration after notice or recording withlapse of time or both, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under and do not and will not conflict with, any of the terms, conditions or provisions of the constating constitutional documents of the Issuer or Company, the resolutions of its directors the directors, officers or Equity Holders shareholders of the Company or any committee thereofthe laws of the Province of British Columbia or the laws of Canada applicable therein; or
(2v) conflict with or result in a breach that all necessary corporate action has been taken by the Company to authorize the execution and delivery by it of or default under any applicable law, or, to its knowledgeeach of the Transaction Agreements, any judgment, order or decree of any Governmental Entity having jurisdiction over documents delivered thereunder and the Issuer or any performance of its respective assets obligations under the Transaction Agreements; (vi) that all necessary corporate action has been taken by the Company to authorize the creation and issue of the Offered Securities and the Offered Securities have been or propertieswill be validly issued; and (vii) that each of the Transaction Agreements constitutes a legal, valid and binding obligation of, and is enforceable against, the Company in accordance with its terms (subject to bankruptcy, insolvency, or other laws affecting the rights of creditors generally, general equitable principles including the availability of equitable remedies and the qualification that no opinion need be expressed as to rights to indemnity or contribution);
(viiic) each if any of the Canadian Preliminary ProspectusOffered Securities are offered or sold in the United States or to, or for the account or benefit of, U.S. Persons, the Canadian Amended Preliminary Prospectus Underwriters will have received at the Closing Time a customary and favourable legal opinion from U.S. counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters to the effect that no registration is required under the U.S. Securities Act in connection with the offer, sale and initial resale of the Offered LIFE Units, provided, in each case, that such offer, sale and initial resale is made in compliance with this Agreement and the Canadian Final Prospectusterms set out in Schedule “A” hereto and provided further that it is understood that no opinion is expressed as to any subsequent resale of any Offered LIFE Units or securities comprising part thereof. In providing the foregoing opinion, andsuch counsel may rely upon the covenants, representation and warranties of the Company and the Underwriters and the Agents set forth in this Agreement and Schedule “A” hereto, and upon the covenants, representation and warranties of any Purchasers in the United States or who are acting for the account or benefit of U.S. Persons or persons in the United States;
(d) certificates or evidence of registration representing, in the aggregate, the Offered Securities issuable on such date registered in the name of CDS or its nominee or in such other name(s) as Canaccord Genuity will have directed;
(e) a certificate from the Transfer Agent as to the number of Shares and Class B Shares issued and outstanding as at the end of the Business Day on the date prior to the Closing Date;
(f) the Cash Commission and cash portion of the Corporate Finance Fee payable in accordance with Section 9(1);
(g) satisfactory evidence of the payment of the TriView Corporate Finance Fee and the delivery of certificates or evidence of registration representing the Broker Special Warrants and Broker Warrants issuable to TriView, if applicable, issuable on such date and registered as TriView will have directed;
(h) evidence satisfactory that the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary ProspectusUnit Shares, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicableWarrant Shares, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary ProspectusBroker Unit Shares, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languagesBroker Unit Warrant Shares, have been duly executed by conditionally approved for listing on the IssuerExchange, subject only to satisfaction of customary conditions;
(ixi) a certificate, dated the Closing Date, and signed on behalf of the Company, but without personal liability, by the Chief Financial Officer of the Company and by the Chief Executive Officer of the Company, or such other officers of the Company as may be reasonably acceptable to the Underwriters and the Agents, certifying that:
(i) the distribution of Company having complied with all the Offered Shares compliescovenants, in all material respects, with and satisfied all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists terms and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filedconditions, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements respects, of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears this Agreement on its face part to be appropriately responsive in all material respects complied with and satisfied at or prior to the requirements of the U.S. Securities Actsuch Closing Time;
(ii) No consentno order, approvalruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the sale of the Offered Securities or any of the Company’s issued securities having been issued, authorization and no proceeding for such purpose, to the knowledge of such officers, being pending or order ofthreatened;
(iii) subsequent to the date of this Agreement, there having not occurred a material change that could reasonably be expected to result in a Material Adverse Effect in respect of the Company, or filingthe coming into existence or discovery of a new material fact;
(iv) subsequent to the date of this Agreement, registration no material change relating to the Company having occurred since the date of this Agreement; and
(v) the representations and warranties of the Company contained in this Agreement, the Warrant Indenture, the Special Warrant Indenture, the Broker Special Warrant Certificates, the Broker Warrant Certificates and in any certificates of the Company delivered pursuant to or qualification within connection with this Agreement, being true and correct in all material respects (or, as regards specific representations and warranties if qualified by materiality, in all respects) as at the Closing Time, with the same force and effect as if made on and as at such Closing Time, except for such representations and warranties which are in respect of a specific date in which case such representations and warranties will be true and correct in all material respects (or, as regards specific representations and warranties if qualified by materiality, in all respects), as of such date, after giving effect to the transactions contemplated by this Agreement.
(j) a certificate dated the Closing Date signed on behalf of the Company, but without personal liability, by the Chief Financial Officer of the Company or another officer acceptable to the Underwriters and the Agents, acting reasonably, in form and content satisfactory to the Underwriters and the Agents, acting reasonably, with respect to the constating documents of the Company; the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Securities, the authorization of this Agreement, the listing of the Unit Shares, the Warrant Shares, the Broker Unit Shares, the Broker Unit Warrant Shares, the Warrants and the Broker Unit Warrants on the Exchange and transactions contemplated by this Agreement; and the incumbency and signatures of signing officers of the Company;
(k) a certificate of status (or equivalent) for the Company and each Company Material Subsidiary dated within one Business Day (or such earlier or later date as the Underwriters and the Agents may accept) of the Closing Date; and
(l) all Authorizations or filings as may be required by any Governmental Authority, which has not been obtained, taken or made (any other than as required by any state securities laws, as third party necessary to which such counsel expresses no opinion) is required under any Applicable Law for complete the issuance or sale of the Offered Shares Securities as contemplated herein will have been made or obtained; and
(m) no order, ruling or determination having the performance by the Issuer effect of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means ceasing or suspending trading in any executive, legislative, judicial, administrative or regulatory body securities of the United States of America. For purposes of this opinion, Company or prohibiting the term “Applicable Law” means those laws, rules and regulations sale of the United States securities underlying the Offered Securities or any of Americathe Company’s issued securities will have been issued and no proceeding for such purpose will be pending or, in each case which are normally applicable to the transactions knowledge of the type contemplated Company, threatened by this Agreement;any Regulatory Authority.
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the followingfollowing matters:
(i) the Issuer:
(1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 20192018, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 20152015 and the 7.50% convertible subordinated unsecured debentures due October 31, 2o14, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plansplans (except a deferred profit sharing plan to which the Issuer, or an employer that does not deal at arm’s length with the Issuer, has made a contribution), registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the followingfollowing matters:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Income Tax Considerations - Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer and the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) the Issuer:
(1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30Debentures, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 20152015 and the 7.50% convertible subordinated unsecured debentures due October 31, 2014, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creationexecution, certification, issue, sale and delivery of the Offered Shares, and, Debentures and all necessary corporate action has been taken by the Issuer having received to create and validly issue the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the IssuerUnderlying Shares;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the Trust Indenture and the performance of its obligations hereunderthereunder, and this Agreement has and the Trust Indenture have been duly executed and delivered by the Issuer and constitutes a constitute legal, valid and binding obligation obligations of the Issuer enforceable against it in accordance with its their respective terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement and the Trust Indenture may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, the Trust Indenture and the Debentures, or the performance by the Issuer of its obligations hereunderhereunder or thereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Debentures (and the Underlying Shares), except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this AgreementAgreement and the Trust Indenture, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares Debentures complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares Debentures for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the form and terms of the certificates for the Debentures have been approved and adopted by the directors of the Issuer and comply with the terms and conditions of the Trust Indenture and the requirements of the TSX;
(xiii) the TSX has conditionally approved the listing and posting for trading of the Offered Debentures and the Underlying Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiiixiv) provided as long as the Offered Debentures or the Underlying Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares Debentures will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plansplans (except a deferred profit sharing plan to which the Issuer, or an employer that does not deal at arm’s length with the Issuer, has made a contribution), registered disability savings plans and tax-free savings accounts;
(xivxv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the SharesShares and Computershare Trust Company of Canada, at its principal office in Toronto, has been duly appointed as the trustee under the Trust Indenture with respect to the Debentures; and
(xvxvi) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date and addressed to the Underwriters Underwriters, from Torys LLP, Canadian counsel to the Issuer’s U.S. securities counsel Underwriters, in form and content to the reasonable satisfaction of the Underwriters’ counsel Underwriters with respect to such matters as the Underwriters may reasonably request;
(c) the Underwriters will have received certificates dated the Closing Date signed by those senior officers on behalf of the Issuer, as may be acceptable to the Underwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to all such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements constating documents of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActIssuer;
(ii) No consentthe resolutions of the directors of the Issuer relevant to the approval of the Final Prospectus and the signing and filing thereof, approvalcreation, authorization issuance and sale of the Debentures; and
(iii) the incumbency and signatures of signing officers of the Issuer;
(d) the Underwriters will have received at the Closing Time a certificate dated the Closing Date addressed to the Underwriters and signed by two senior officers of the Issuer, certifying for and on behalf of Issuer:
(i) subsequent to the respective dates as at which information is given in the Final Prospectus or order ofany Supplemental Material there has been no material change (actual, anticipated, contemplated or filingthreatened, registration whether financial or qualification withotherwise) to the business, any Governmental Authorityaffairs, which has not been obtainedassets, liabilities (contingent or otherwise), capital or prospects of the Issuer or its subsidiaries, taken as a whole, and none of the Issuer or made (its subsidiaries has entered into any transaction out of the ordinary course of business which is material to the Issuer or the subsidiaries, taken as a whole, other than as required disclosed in the Final Prospectus or any Supplemental Material;
(ii) there are no actions, suits, proceedings or inquiries pending or threatened against or affecting the Issuer or its subsidiaries at law or in equity or before or by any state securities lawsfederal, provincial, state, municipal, county or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Issuer or its subsidiaries, taken as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares a whole, or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type transaction contemplated by this Agreement;
(iii) no order, ruling or determination having the effect of ceasing or suspending trading in the Shares or prohibiting the sale of the Debentures has been issued, no proceedings for such purpose have been instituted no proceedings for such purpose are pending or, to the Actual Knowledge of the Issuer, threatened;
(iv) the Issuer has complied with all of its obligations under the SNCF Subscription Agreement as required in connection with the Offering of the Debentures;
(v) the Issuer has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied by it up to the Closing Time; and
(vi) the representations and warranties of the Issuer contained in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transaction contemplated by this Agreement; and all of those matters will in fact be true and correct as at the Time of Closing and none of the Underwriters shall have any knowledge to the contrary;
(e) the Underwriters will have received at the Closing Time a comfort letter dated as of the Closing Date addressed to the Underwriters from the Auditors substantially in the form requested by the Underwriters, acting reasonably, updating the comfort letter or letters to be delivered to the Underwriters pursuant to Section 7, provided that such letter may be based on a review by the Auditors having a cut-off date not more than two business days prior to the Closing Date;
(f) all actions required to be taken by or on behalf of the Issuer including the passing of all requisite resolutions of the directors of the Issuer and all requisite filings with governmental authorities, Securities Commissions or courts will have occurred at or prior to the Closing Time, so as to validly authorize the execution and filing of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, to authorize the execution of the Trust Indenture, and to authorize and issue the Debentures and the Underlying Shares, in each case having the attributes contemplated by the Final Prospectus;
(g) the Debentures and the Underlying Shares will have been approved for listing and posting for trading on the TSX, subject only to the Standard Listing Conditions; and
(h) the Underwriters will have received such other certificates, opinions, agreements, materials or documents, in form and substance satisfactory to the Underwriters, as the Underwriters may reasonably request.
13.2 In giving the opinions contemplated in Section 13.1, counsel may rely:
(a) as to matters of fact, to the extent appropriate in the circumstances, on certificates of the Auditors and on certificates of the Issuer executed on their respective behalf by a senior officer, acceptable to the Underwriters, acting reasonably;
(b) on the opinions of local counsel acceptable to the Underwriters and their Underwriters’ counsel (signed copies should be addressed to and delivered to the Underwriters and their counsel), acting reasonably, as to matters respecting the qualification of the Debentures for sale to the public and as to other relevant matters in the Qualifying Jurisdictions and all other relevant jurisdictions; and
(c) in the case of counsel to the Underwriters and to the extent necessary, on the opinion of the Issuer’s counsel or local counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. 13.1 The Underwriters’ obligations under obligation to purchase the Offered Shares pursuant to this Agreement will (including the obligation to complete the purchase of the Base Shares and the Over-Allotment Shares, as the case may be) shall be subject to the following conditions being fulfilled which are for conditions:
(1) the exclusive benefit Underwriters receiving at the Time of Closing a legal opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the UnderwritersCorporation, any of which may be waived, in whole or in part, by with respect to the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofmatters set forth below:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions existence and qualifications, dated as corporate power of the Closing Date addressed Corporation to enter into and perform its obligations under this Agreement;
(b) the Underwriters from the Issuer’s Canadian counsel in form corporate power and content to the reasonable satisfaction capacity of the Underwriters’ counsel with respect to the following:
(i) the Issuer:
(1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and Corporation to carry on business and to own and lease its Business as presently conducted as described in the Final Prospectusproperties and assets;
(iic) the Issuer is authorized to issue an unlimited number execution and delivery of Shares, and performance by the Corporation of which, as at this Agreement and that the Closing Time, such numbers execution and filing of Shares as noted in the Canadian Preliminary Prospectus and the Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) being authorized by all necessary corporate action has been taken by on the Issuer to authorize the creation, issue, sale and delivery part of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the IssuerCorporation;
(vd) all necessary corporate action has been taken the qualification of the Corporation to authorize carry on business as an extra-provincial corporation in Ontario;
(e) that the execution and delivery of and performance by the Issuer Corporation of this Agreement does not constitute or result in a violation or breach of or a default under its articles of incorporation, as amended, or by-laws, any laws of general application in the Qualifying Jurisdictions or, to the knowledge of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, any judgment, order or decree of any court, agency, tribunal, arbitrator or other authority to which the Corporation is subject;
(f) that no authorization, consent or approval of, or filing, registration, qualification or recording with, any Governmental Authority having jurisdiction in the Qualifying Jurisdictions is required by the Corporation in connection with the execution and delivery of or performance by the performance Corporation of its obligations hereunder, and this Agreement;
(g) that this Agreement has been duly executed and delivered by the Issuer Corporation as a matter of corporate law in compliance with the laws of its jurisdiction of incorporation, namely Canada, and with the provisions of its certificate and articles of incorporation, as amended, and its by-laws;
(h) that this Agreement constitutes a legal, valid and binding obligation agreement of the Issuer Corporation enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar terms under the laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable lawOntario;
(vii) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer authorized capital of the Offering, including Corporation;
(j) the creation, issuance, sale and delivery issuance of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have Shares having been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by on the Issuer, and each part of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the IssuerCorporation;
(ixk) subject to receipt of payment in full for them, that the Offered Shares will be validly issued as fully paid and non-assessable;
(l) all necessary documents having been filed, all requisite proceedings having been taken and all necessary approvals, permits, consents and authorizations having been obtained by the Corporation under the applicable Canadian securities laws of the Qualifying Jurisdictions to qualify the distribution of the Offered Shares compliesand the Over-Allotment Option, and if the Over-Allotment Option is exercised in all material respectsaccordance with its terms, with all laws the Over-Allotment Shares: (i) to the public in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default Jurisdictions through registrants registered under the applicable Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the securities laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation; and (ii) to such registrants purchasing as principals, provided that, in both cases, the Preliminary Prospectus and the Final Prospectus are delivered to purchasers and filed with the regulators in each of the Qualifying Jurisdictions in accordance with applicable Canadian securities laws and the applicable fees are paid within the prescribed time periods;
(xiim) the accuracy of the statements under the heading of the Prospectus entitled “Eligibility for Investment”, subject to the assumptions, qualifications, limitations and restrictions set out therein;
(n) subject to the Standard Listing Conditions, the Offered Shares have been conditionally listed or approved for listing on the TSX; and
(o) the reporting issuer status of the Corporation in B.C., Alberta, Ontario and Quebec; all subject to customary assumptions and qualifications (including reliance, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or transfer agent of the Corporation) and in a form acceptable to the Underwriters and their counsel, acting reasonably.
(2) the Underwriters receiving at the Time of Closing a legal opinion from local securities counsel to the Corporation, with respect to the matters set forth below:
(a) the qualification of the Corporation to carry on business as an extra-provincial corporation in each of the Qualifying Jurisdictions other than B.C., Alberta, Ontario and Quebec, as applicable;
(b) all necessary documents having been filed, all requisite proceedings having been taken and all necessary approvals, permits, consents and authorizations having been obtained by the Corporation under the applicable Canadian securities laws of the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, to qualify the distribution of the Offered Shares and the Over-Allotment Option, and if the Over- Allotment Option is exercised in accordance with its terms, the Over-Allotment Shares:
(i) to the public in the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, through registrants registered under the applicable Canadian securities laws of the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, who have complied with the relevant provisions of such applicable legislation; and (ii) to such registrants purchasing as principals, provided that, in both cases, the Preliminary Prospectus and the Final Prospectus are delivered to purchasers and filed with the regulators in each of the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, in accordance with applicable Canadian securities laws and the applicable fees are paid within the prescribed time periods;
(c) the reporting issuer status of the Corporation in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable; all subject to customary assumptions and qualifications (including reliance, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or transfer agent of the Corporation) and in a form acceptable to the Underwriters and their counsel, acting reasonably.
(3) the Underwriters receiving at the Time of Closing the favourable legal opinion dated the Closing Date from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Corporation, to the effect that registration of the Offered Shares offered and sold in the United States in accordance with this Agreement (including Schedule “B” hereto) will not be required under the U.S. Securities Act, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably;
(4) the Underwriters receiving at the Time of Closing from local counsel in each jurisdiction of incorporation, organization or formation, as the case may be, of each Material Subsidiary, a legal opinion dated the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to the effect that each of the Material Subsidiaries is a corporation or other form of entity existing under the laws of the jurisdiction in which it was incorporated, organized, formed, amalgamated or continued, as the case may be, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets and as to the registered ownership of the issued and outstanding securities of each Material Subsidiaries in those jurisdictions in which there are available public registers of issued and outstanding securities for the Material Subsidiary;
(5) The Underwriters receiving a title opinion from counsel in local counsel in Africa in respect of the Sabodala Property in form and substance satisfactory to the Underwriters, acting reasonably;
(6) the Underwriters receiving certificates dated the Closing Date and signed by two senior officers of the Corporation as may be acceptable to the Underwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(7) the Underwriters receiving certificates of status and/or compliance for the Corporation and Gryphon Minerals Limited, each dated within one (1) Business Day prior to the Closing Date;
(8) the Underwriters receiving at the Time of Closing a “bring down” comfort letter dated the Closing Date from the current auditors of the Corporation, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(c);
(9) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation and without personal liability, after having made due enquiries, that:
(a) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Shares or the Common Shares has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) since the respective dates as of which information is given in the Final Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or its subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Time of Closing; and
(e) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing as if such representations and warranties were made as at the Time of Closing, after giving effect to the transactions contemplated hereby;
(10) the Underwriters receiving at the Time of Closing a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the end of business on the Business Day prior to the Closing Date;
(11) at the Time of Closing, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the sale of the Offered Shares or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to the knowledge of the Corporation, threatened by any securities regulatory authority, the TSX has conditionally approved or the ASX;
(12) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX, subject only to fulfilling satisfaction by the Corporation of Standard Listing Conditions by the date required by the TSXConditions;
(xiii13) provided the Offered Shares are listed on a designated stock exchange, as defined in Corporation complying with all of its covenants and obligations under this Agreement required to be satisfied at or prior to the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accountsTime of Closing;
(xiv14) the Trust Company, at its principal offices Underwriters not having exercised any rights of termination set forth herein;
(15) the Underwriters shall have received a lock-up agreement from the Purchasing Insider and ▇▇▇▇▇ ▇▇▇▇▇▇ in Toronto, has the form attached hereto as Schedule “C” subject to such changes as may be agreed to by the Co-Lead Underwriters on behalf of the Underwriters;
(16) the Concurrent Private Placement having been duly appointed as completed with the registrar and transfer agent with respect to the SharesPurchasing Insider; and
(xv) the directors of the Issuer are duly appointed.
(b17) the Underwriters will have having received at the Time of Closing such further certificates, opinions of counsel and other documentation from the Corporation contemplated herein, provided, however, that the Underwriters or their counsel shall request any such certificate or document within a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed reasonable period prior to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction Time of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except Closing that is sufficient for the financial statementsCorporation to obtain and deliver such certificate, financial statement schedules and other financial data included opinion or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will ' obligation to purchase any Initial Units at the Closing Time shall be subject to conditional upon the fulfilment at or before the Closing Time of the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofconditions:
(a) the Underwriters will shall have received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualificationscertificate, dated as of the Closing Date addressed to Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters from the Issuer’s Canadian counsel in form may agree, certifying for and content to the reasonable satisfaction on behalf of the Underwriters’ counsel with respect to the followingCompany that:
(i) no order, ruling or determination having the Issuereffect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Prospectus (except the Underwriters Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Securities, the Over-Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriters may reasonably request;
(c) the Company shall have made and/or obtained all necessary filings, approvals, permits, consents and authorizations to or from, as the case may be, the board of directors and shareholders of the Company, the Securities Regulators, the TSXV, the NYSE and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Underwriters, acting reasonably;
(d) the Unit Shares, the Warrant Shares, and the Broker Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, counsel to the Company, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and their counsel, acting reasonably, with respect to the following matters:
(1i) is a corporation incorporated as to the incorporation and validly existing subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Securities, grant the Over-Allotment Option and issue the Warrant Shares and Broker Securities;
(ii) as to the authorized and issued capital of the Company;
(iii) the Company has all requisite corporate power and capacity under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and existence to carry on its Business business as presently conducted carried on and to own, lease and operate its properties and assets as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale execution and delivery of the Offered Shares, andTransaction Documents, the Issuer having received performance by the consideration for Company of its obligations thereunder, the issue thereof, Offered Shares have been validly issued sale and are outstanding as fully paid and non-assessable shares issuance of the IssuerOffered Securities, the grant of the Over-Allotment Option and the issuance of the Warrant Shares and Broker Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) all necessary corporate action has been taken to authorize each of the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has Transaction Documents have been duly authorized and executed and delivered by the Issuer Company, and constitutes a legal, constitute valid and legally binding obligation obligations of the Issuer Company enforceable against it in accordance with its terms, provided that except as enforcement thereof may be limited by bankruptcy, insolvency and other insolvency, liquidation, reorganization, moratorium or similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and other except as limited by the application of equitable principles when equitable remedies may be granted only in are sought, and the discretion qualification that the enforceability of a court of competent jurisdiction and that rights of indemnity and/or and contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with all necessary corporate action has been taken by the Company to authorize the execution and delivery by of each of the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Base Shelf Prospectus and the consummation by Prospectus Supplement and the Issuer filing thereof with the Securities Regulators, the filing of the Offering, including Marketing Document with the creation, issuance, sale Securities Regulators and the delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtainedU.S. Private Placement Memorandum;
(vii) the execution Unit Shares, other than the Over-Allotment Unit Shares issuable at any Option Closing Time, have been duly and the delivery of this Agreement, validly issued as fully paid and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiesnon-assessable Common Shares;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions Warrants have been duly approved and authorized by all necessary corporate action by validly created and, other than the IssuerWarrants issuable at any Option Closing Time, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuerissued;
(ix) the distribution Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Offered Shares complies, Warrants in all material respects, accordance with all laws in the Province of Quebec relating to the use provisions of the French language in connection therewithWarrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(x) the Issuer is a reporting issuer or Broker Warrants have been duly and validly created and, other than the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of Broker Warrants issuable at any Qualifying JurisdictionOption Closing Time, issued;
(xi) the Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(xii) all necessary corporate action has been taken by the Company to authorize the issuance of the Additional Securities, subject to receipt of payment in full for them, and the issuance of the additional Broker Warrants, and when issued and delivered, the Additional Securities and the additional Broker Warrants will be duly and validly issued by the Company and the Over-Allotment Unit Shares will be outstanding as fully paid and non-assessable Common Shares;
(xiii) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Warrant Shares, the Over-Allotment Option and the Broker Securities conform in all material respects with the description thereof set forth in the Prospectus;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under approvals, permits, consents and authorizations of the laws of Securities Regulators in each of the Qualifying Jurisdictions in order have been obtained by the Company to qualify the Offered Shares for distribution and sale to the public of the Offered Securities in each of the Qualifying Jurisdictions through investment dealers or brokers persons who are registered under applicable legislation Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Broker Warrants to the Underwriters;
(xv) the issuance by the Company of the Warrant Shares upon the due exercise of the Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislationin connection therewith;
(xiixvi) the TSX has issuance by the Company of the Broker Warrant Shares upon the due exercise of the Broker Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xvii) the first trade in, or resale of, the Warrants Shares or the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as defined in National Instrument 45-102 - Resale of Securities);
(xviii) the Unit Shares, the Warrant Shares, and Broker Warrant Shares have been conditionally approved the for listing and posting for trading of on the Offered Shares TSXV, subject only to fulfilling the Standard Listing Conditions satisfaction by the date required Company of certain standard post-closing conditions imposed by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the SharesTSXV; and
(xvxix) as to such other matters as the directors of Underwriters' legal counsel may reasonably request prior to the Issuer are duly appointed.Closing Time;
(bf) the Underwriters will shall have received a favourable legal opinionopinion addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, as to: (i) the incorporation and subsistence of Canam and Vizsla Royalty, (ii) the corporate power and capacity of Canam and Vizsla Royalty under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam and Vizsla Royalty and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(g) the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, tax counsel to the Company, such opinion to be subject to customary limitationsstandard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Prospectus Supplement under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and qualificationslimitations set out under such heading;
(h) if any Offered Securities are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that no registration of the Offered Securities offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Securities to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Securities;
(i) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, as to title to the mineral concessions comprising the Panuco Property;
(j) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, with respect to (i) the incorporation and subsistence of Minera Canam and Canam Royalties, (ii) the corporate power and capacity of Minera Canam and Canam Royalties under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Minera Canam and Canam Royalties and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(k) the Underwriters shall have received from the Company's Auditors a letter, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel Date, in form and content substance satisfactory to the reasonable satisfaction Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(l) the Underwriters shall have received executed copies of all the lock-up agreements requested by the Underwriters pursuant to Section 6(l) in form and substance satisfactory to the Underwriters’ counsel , acting reasonably;
(m) the Underwriters shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company, Canam, Vizsla Royalty, Minera Canam and Canam Royalties are existing;
(n) the Underwriters shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(o) the Underwriters shall have received such matters other documents as the Underwriters or its counsel may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects request prior to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;Closing Time.
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will obligation of the Underwriters to purchase the Offered Shares shall be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the following:
(a) The Canadian Final Prospectus shall have been timely filed with the Canadian Securities Regulators and a Mutual Reliance Review System Decision Document shall have been obtained in respect thereof and the Registration Statement shall have become effective; and at the Time of Closing no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the SEC, no order having the effect of ceasing or suspending the distribution of the Offered Shares or the trading in the securities of the Corporation or any other securities of the Corporation shall have been issued or proceedings therefor initiated or threatened by any securities commission, securities regulatory authority or stock exchange in Canada or the United States, and any request on the part of the Canadian Securities Regulators or the SEC for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters;
(b) the Corporation shall cause its Yukon counsel, in respect of the laws of the Yukon, and Fasken Martineau DuMoulin LLP in respect of the laws of the Province▇ ▇▇ ▇▇▇▇ish Columbia, Alberta and Ontario, to deliver to the Underwriters and their counsel a legal opinion dated and delivered the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, with respect to the following matters:
(i) the Issuer:
(1) Corporation is a corporation incorporated "reporting issuer", or its equivalent, in each of the Qualifying Provinces and validly existing under it is not listed as in default of any requirement of the laws Securities Laws in any of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final ProspectusQualifying Provinces;
(ii) the Issuer Corporation is authorized to issue an unlimited number of Shares, of which, as at a corporation existing under the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities laws of the IssuerYukon Territory and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets;
(iii) to its knowledge, as the authorized capital of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingCorporation;
(iv) the Corporation has all necessary corporate action has been taken by the Issuer power and capacity:
(i) to authorize the creationexecute and deliver this Agreement and perform its obligations under this Agreement; and (ii) to create, issue, sale issue and delivery of sell the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus, the amended Preliminary Prospectus and the Prospectus and the filing thereof with the Canadian Securities Regulators;
(vi) upon the payment therefor, the Underwritten Shares will have been validly issued as fully paid and non-assessable, and upon exercise of the Over-Allotment Option and payment therefor, the Additional Shares will have been validly issued as fully paid and nonassessable;
(vii) all necessary corporate action has been taken by the Issuer Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder, hereunder and this Agreement has been duly executed and delivered by the Issuer Corporation and constitutes a legal, valid and binding obligation of the Issuer Corporation enforceable against it in accordance with its terms, provided that enforcement may be limited by subject to bankruptcy, insolvency and other similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(viiviii) the execution rights, privileges, restrictions and conditions attaching to the delivery of this Agreement, Common Shares are accurately summarized in all material respects in the Prospectuses and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the IssuerRegistration Statement;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under approvals, permits and consents of the laws of appropriate regulatory authority in each of the Qualifying Jurisdictions in order Provinces to qualify the Offered Shares for distribution and sale or distribution to the public of the Offered Shares in each of the Qualifying Provinces through investment dealers or brokers persons who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xiix) subject only to the TSX has conditionally approved the listing and posting for trading of Standard Listing Conditions, the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by have been conditionally listed on the TSX;
(xiiixi) provided the execution and delivery of this Agreement, the fulfilment of the terms hereof by the Corporation and the issuance, sale and delivery of the Offered Shares are listed on to be issued and sold by the Corporation at the Time of Closing do not and will not result in a designated stock exchangebreach of or default under and do not and will not conflict with any of the terms, as defined in conditions or provisions of the Tax Act, articles or by-laws of the Corporation;
(xii) Computershare Trust Company of Canada has been duly appointed the transfer agent and registrar for the Common Shares;
(xiii) the Offered Shares will will, on the Closing Date, be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free registered education savings accountsplans;
(xiv) the Trust Companystatements set forth in the Canadian Final Prospectus under the caption "Canadian Federal Income Tax Considerations", at its principal offices in Torontoinsofar as they purport to describe the provisions of the laws referred to therein, has been duly appointed as are fair summaries of the registrar and transfer agent with respect to the Shares; andmatters discussed therein;
(xv) To the directors knowledge of such counsel, there are no persons with registration rights or other similar rights to have any securities qualified for distribution under Canadian Securities Laws;
(xvi) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency in Canada is necessary or required to be made or obtained by the Corporation in connection with the due authorization, execution and delivery of this Agreement or for the offering, sale or delivery of the Issuer are duly appointed.Offered Shares;
(bxvii) To the Underwriters will have received knowledge of such counsel, there is not pending or threatened any action, suit, proceeding, inquiry, or investigation, to which the Corporation is a legal opinionparty, subject or to customary limitations, assumptions and qualifications, dated as which the property of the Closing Date addressed Corporation is subject, before or brought by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction properties or assets of the Underwriters’ counsel with respect to such matters as Corporation or the Underwriters may reasonably request, including consummation of the following:transactions contemplated in this Agreement or the performance by the Corporation of its obligations thereunder;
(ixviii) The Registration Statement Canadian Prospectus (excluding the financial statements and the U.S. Final Prospectusother financial data included or incorporated therein or omitted therefrom, as of their respective effective or issue dates, appear on their face to be appropriately responsive which such counsel need not express any opinion) complies as to form in all material respects to the requirements of Canadian Securities Laws; and
(xix) The documents incorporated by reference in the U.S. Securities Act, except for Canadian Prospectus as amended or supplemented (other than the financial statements, financial statement schedules statements and other financial data included or incorporated or deemed to be incorporated therein, as to which such counsel need not express any opinion), when they were filed with the Canadian Securities Regulators, complied as to form in all material respects to the formal requirements of the securities laws, rules and regulations of the Province of Ontario as interpreted and applied by the Canadian Securities Regulators and of the Qualifying Provinces as interpreted and applied by the relevant Canadian Securities Regulators under published policy statements, In connection with such opinion, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Offered Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others. In addition to rendering the opinions set forth above, such counsel shall also include a statement to the effect that such counsel has participated in the preparation of the Disclosure Package (except that the reference to "U.S. Amended Preliminary Prospectus" and "U.S. Prospectus Amendment" in the definition of "Disclosure Package" herein shall be replaced with "Canadian Amended Preliminary Prospectus" and "Canadian Prospectus Amendment," as amended or supplemented at the Applicable Time, for the purpose of such counsel's opinion), and the Canadian Prospectus and in conferences with officers and other representatives of the Corporation, U.S. counsel for the Corporation, representatives of the independent accountants for the Corporation, counsel for the Underwriters and representatives of the Underwriters at which the contents of the Disclosure Package and the Canadian Final Prospectus and related matters were discussed and although such counsel has not independently verified, and (except as to those matters and to the extent set forth in the opinions referred to in subsections (xiv) of this Section 10(b)) is not passing upon and does not assume any responsibility for, the factual accuracy, completeness or fairness of the statements contained in the Disclosure Package and Canadian Prospectus, on the basis of such participation, no facts have come to such counsel's attention which have caused such counsel to believe that (i) the Disclosure Package, when taken as a whole, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or (ii) as of the date of the Canadian Prospectus and as of the Closing Date, the Canadian Prospectus contains any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading (in each case, other than the financial statements and other financial and statistical information, and the information derived from the reports of or attributed to persons named in the Canadian Prospectus under the heading "Interest of Experts", included or incorporated by reference therein, as to which such counsel need express no belief).
(c) the Corporation shall cause its U.S. counsel, Baker & McKenzie, together with Baker & McKenzie, Caracas, Ve▇▇▇▇▇la, ▇▇ ▇▇▇▇ver to the Underwriters and their counsel a legal opinion dated and delivered the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, with respect to the following matters:
(i) the Offered Shares are approved for listing subject to notice of issuance on the American Stock Exchange;
(ii) to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be filed as an exhibit to the Registration Statement which is not filed as required;
(iii) the statements included or incorporated by reference in the Amended Preliminary Prospectuses and Final Prospectuses under the heading "Certain United States Federal Income Tax Considerations" and "Risk Factors - The Company determined that it is a "passive foreign investment company"..." insofar as such statements summarize legal matters discussed therein, are accurate and fair summaries of such legal matters in all material respects;
(iv) the Registration Statement has become effective under the 1933 Act and the Form F-X was filed with the Commission prior to the effectiveness of the Registration Statement; the filing of the U.S. Final Prospectus and any amendments thereto, has been made in the manner and within the time periods required by Form F-10 and the applicable rules and regulations of the SEC; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement and no proceedings for that purpose have been instituted or omitted from either of themthreatened by the SEC, and the Registration Statement and the U.S. Final Prospectus (other than the financial statements and other financial and statistical information and the information derived from the reports of or attributed to persons named in the U.S. Preliminary Prospectus and the U.S. Final Prospectus under the heading "Interests of Experts" included or incorporated by reference therein as to which such counsel need express no opinion) as of the Effective Date and the Form F-X appeared on its face to comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder;
(v) the Corporation is not and, after giving effect to the offering and sale of the Offered Shares and the application of the proceeds thereof as described in the U.S. Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended;
(vi) no approval or authorization, or filing with any governmental authority of the U.S. is required for transactions contemplated by the Agreement in connection with the sale of the Offered Shares such as have been obtained or made under the 1933 Act, except for such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Offered Shares by the Underwriters in the manner contemplated in this Agreement and in the U.S. Amended Preliminary Prospectus and the U.S. Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(vii) neither the issue and sale of the Offered Shares, nor the transactions contemplated by the Agreement in connection with the sale of the Offered Shares will result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Corporation or its subsidiaries pursuant to, any U.S. federal, Texas or Venezuelan statute, law, rule, regulation, judgment, order or decree applicable to the Corporation or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Corporation or its Subsidiaries or any of its or their properties; and
(viii) to the knowledge of such counsel, no holders of securities of the Corporation have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Corporation and public officials. In addition to rendering the opinions set forth above, such counsel shall also include a statement to the effect that such counsel has participated in the preparation of the Registration Statement, the Disclosure Package and the U.S. Final Prospectus under and in conferences and telephone conversations with officers and other representatives of the caption “Certain United States Federal Income Tax Considerations,” Corporation, Canadian counsel for the Corporation, representatives of the independent accountants for the Corporation, counsel for the Underwriters and representatives of the Underwriters during which the contents of the Registration Statement, the Disclosure Package and U.S. Final Prospectus were discussed and although such counsel has not independently verified, and (except as to which those matters and to the extent set forth in the opinions referred to in subsection (iii) of this Section 10(c)) is not passing upon and does not assume any responsibility for, the factual accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and U.S. Final Prospectus, on the basis of such participation, there is not reason for such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
believe that (ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will obligation of the Underwriters to purchase the Offered Shares at the Closing Time on the Closing Date shall be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereoffollowing:
(a) the Underwriters will have received receive at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date opinion addressed to the Underwriters and their counsel dated and delivered on the Closing Date from the IssuerCompany’s Canadian counsel, Torys LLP, and from local counsel (only in respect of matters governed by laws of the Qualifying Jurisdictions where the Company’s Canadian counsel is not qualified to practice), in each case in form and content substance satisfactory to the reasonable satisfaction of the Underwriters’ counsel Underwriters and their counsel, acting reasonably, with respect to the followingfollowing matters, subject to such reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Underwriters’ counsel:
(i) the Issuer:Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as being in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(1ii) the Company is a corporation duly incorporated and validly existing under the federal laws of its jurisdiction of incorporation; and
(2) Canada, and has all necessary requisite corporate power, capacity and authority to carry on its business as now conducted and capacity to own or own, lease and operate its property and assets and to carry on its Business as presently conducted as described in the Final Prospectus;
(iiiii) as to the authorized, and issued and outstanding, capital of the Company;
(iv) the Issuer is authorized rights, privileges, restrictions and conditions attaching to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Offered Shares as noted are accurately summarized in all material respects in the Canadian Final Prospectus will be Prospectus;
(v) the Offered Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable securities of the IssuerCommon Shares;
(iiivi) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and to perform its knowledgeobligations under this Agreement; and (ii) to offer, as of issue, sell and deliver the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingOffered Shares;
(ivvii) all necessary corporate action has been taken by the Issuer Company to authorize the creationexecution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof in each of the Qualifying Jurisdictions;
(viii) the Company has duly authorized, executed and delivered, this Agreement and authorized the performance of its obligations hereunder, including the offering, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer Company enforceable against it the Company in accordance with its terms, provided that enforcement may be limited by subject to: (i) applicable bankruptcy, insolvency and insolvency, moratorium, reorganization or other similar laws of general application affecting the enforcement of creditors’ rights generally; (ii) equitable remedies, including the remedies of specific performanceperformance and injunctive relief, injunctive relief and other equitable remedies may be granted being available only in the discretion of the applicable court; (iii) the applicable laws regarding limitations of actions; (iv) 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; (v) enforceability of the provisions exculpating a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement party from liability or duty otherwise owed by it may be limited by applicable lawunder Applicable Law; and (vi) the rights to indemnity, contribution and waiver under the documents which may be limited or unavailable under Applicable Law;
(viix) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Agreement and the consummation by the Issuer fulfillment of the Offeringterms hereof, including the creationoffering, issuanceissue, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offeringtransactions contemplated by this Agreement, will not:
(1) conflict with or result in or will do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the constating documents articles of incorporation or amalgamation, as applicable, and by-laws of the Issuer Company, (ii) resolutions of the shareholders or the resolutions board of its directors or Equity Holders (or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary ProspectusCompany, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
or (ixiii) the distribution laws of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to Ontario and the use federal laws of the French language in connection therewithCanada applicable therein;
(x) Computershare Investor Services Inc. is the Issuer is a reporting issuer or duly appointed registrar and transfer agent for the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying JurisdictionCommon Shares;
(xi) all necessary documents have been filed, all requisite proceedings have been taken taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all other necessary legal requirements have been fulfilled under fulfilled, in order to qualify the laws distribution of the Offered Shares in each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions Applicable Securities Laws and who have complied with the relevant provisions of such applicable legislationApplicable Laws;
(xii) subject only to the TSX has conditionally approved the listing and posting for trading of Standard Listing Conditions, the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by have been conditionally listed or approved for listing on the TSX;
(xiii) provided as to the Offered Shares are listed on a designated stock exchange, as defined accuracy of the statements under the heading “Eligibility for Investment” in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;Prospectus; and
(xiv) as to all other legal matters reasonably requested by counsel to the Trust CompanyUnderwriters. In connection with such opinion, at its principal offices counsel to the Company may rely on the opinions of local counsel in Torontothe Qualifying Jurisdictions acceptable to counsel to the Underwriters, has been duly appointed acting reasonably, as to the registrar and transfer agent qualification for distribution of the Offered Shares or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the Shares; and
(xv) laws of jurisdictions other than the directors province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances but only as to matters of fact, on certificates of officers of the Issuer are duly appointed.Company and others;
(b) the Underwriters will shall have received legal opinions from legal counsel to, and duly qualified to practice law in the jurisdiction of existence of, each wholly-owned Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.) addressed to the Underwriters and legal counsel to the Underwriters and based upon an officer’s certificate for each such Material Subsidiary with respect to: (i) the existence of each such Material Subsidiary; and (ii) the corporate power and capacity of each such Material Subsidiary to carry on its business and activities and to own and lease its property and assets;
(c) the Underwriters shall have received a legal opinioncertificate dated the Closing Date, subject signed by the Chief Executive Officer of the Company or any other senior officer(s) of the Company as may be acceptable to customary limitationsthe Underwriters, assumptions in form and qualificationscontent satisfactory to the Underwriters’ counsel, acting reasonably, with respect to:
(i) the articles and by laws of the Company;
(ii) resolutions of the Company’s board of directors relevant to, among other things, the issue and sale of the Offered Shares to be issued and sold by the Company and the authorization of this Agreement and the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(d) the Underwriters shall have received a certificate of status or the equivalent dated within one Business Day of the Closing Date, in respect of the Company and each Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.);
(e) the Company shall cause its current auditors to deliver to the Underwriters a “bring down” comfort letter, addressed to the Underwriters and the board of directors of the Company, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 25(a)(iii) hereof;
(f) the Company shall deliver to the Underwriters, at the Closing Time, certificates dated the Closing Date addressed to the Underwriters from and signed by the Issuer’s U.S. securities counsel in form Chief Executive Officer and content the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the reasonable satisfaction Underwriters, certifying for and on behalf of the Underwriters’ counsel Company and without personal liability, to the effect that:
(i) the Company has complied in all respects with all the covenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(iv) since the respective dates as of which information is given in the Prospectus or any Supplementary Material (A) there has been no material change in the Company, (B) there has been no material and adverse change (financial or otherwise) in the business, assets (including intangible assets), affairs, operations, prospects, liabilities (contingent or otherwise), capital, properties, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries (taken as a whole), and (C) no transaction has been entered into by, and there has been no transaction that affects, the Company or any Subsidiary which is material to the Company and the Subsidiaries (taken as a whole), other than as disclosed in the Prospectus or in any Supplementary Material;
(v) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Prospectus misleading or untrue in any material respect to or which would result in a misrepresentation in the Prospectus or which would result in the Prospectus not complying with Applicable Securities Laws; and
(vi) such other matters as the Underwriters may reasonably request;
(g) the Underwriters shall have received copies of correspondence indicating that the Company has obtained the conditional approval of the TSX for the listing of the Offered Shares thereon, including subject only to the following:Standard Listing Conditions;
(h) the representations and warranties of the Company contained in this Agreement will be true at and as of the Closing Time on the Closing Date as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Company at or prior to the Closing Time on the Closing Date will have been performed, complied with or satisfied at or prior to that time;
(i) The Registration Statement and the U.S. Final Prospectus, as absence of their respective effective any misrepresentations in the Offering Documents or issue dates, appear on their face to be appropriately responsive in all undisclosed material respects change or undisclosed material facts relating to the requirements of Company or the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActOffered Shares;
(iij) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of Company shall have received a Preliminary Receipt and a Final Receipt qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Preliminary Receipt nor the Final Receipt shall be invalid or have been revoked or rescinded by any Securities Commission;
(k) the performance Underwriters shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(l) the Underwriters will have received such other certificates, opinions, agreements or closing documents in form and substance reasonably satisfactory to the Underwriters as the Underwriters may reasonably request;
(m) the Underwriters will have received evidence, satisfactory to the Underwriters, acting reasonably, that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has waived his rights under Section 6.3 of the Securityholders Agreement in connection with the Offering; and
(n) all directors and officers of the Company and their respective associates will have entered into an agreement with and an in form and substance satisfactory to the Underwriters at the Closing Time on the Closing Date pursuant to which they will agree not to, for a period commencing on December 3, 2017 and ending on the date that is 90 days following the Closing Date, directly or indirectly, offer, sell, contract to sell, make any short sale, lend, swap, or otherwise dispose of, transfer, assign, or announce any intention to do so, any Common Shares or any securities convertible into or exchangeable or exercisable for Common Shares, whether now owned or hereafter acquired, directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Common Shares, whether such transaction is settled by the Issuer delivery of its obligations under this Agreement. For purposes of this opinionCommon Shares, the term “Governmental Authority” means other securities, cash or otherwise, other than pursuant to (i) a bona fide take-over bid or any executive, legislative, judicial, administrative or regulatory body other similar transaction made generally to all of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations shareholders of the United States of AmericaCompany, provided that, in each case which are normally applicable the event the change of control or other similar transaction is not completed, such securities shall remain subject to the transactions lock-up agreement, and (ii) the sale of Common Shares issued pursuant to the type contemplated by this Agreement;exercise of vested stock options or performance share units which were issued prior to December 3, 2017 (subject to a maximum of 100,000 Common Shares in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and 300,000 Common Shares in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇).
Appears in 1 contract
Sources: Underwriting Agreement (Village Farms International, Inc.)
Conditions of Closing. 13.1 9.1 The Underwriters’ obligations under this Agreement of the Agent on Closing will be subject to conditional upon the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereoffollowing:
(a) the Underwriters Issuer will be a “reporting issuer” in each of British Columbia, Alberta, Manitoba, Ontario and Quebec, the Issuer’s Common Shares will be listed and posted for trading on the Exchange and the Issuer will not be in material default of any of the requirements of the Acts or any of the administrative policies or notices of the Exchange;
(b) the Issuer will have received delivered to the Agent and its legal counsel favourable opinions of the Issuer’s U.S. and Canadian legal counsel dated as of the date of Closing, addressed to the Agent, in such form as is acceptable to the Agent and its legal counsel as to all legal matters reasonably requested by the Agent relating to the business of the Issuer and the creation, issuance and sale of the Securities;
(c) the Issuer will have delivered to the Agent and its legal counsel a legal opinion, subject to customary limitations, assumptions and qualificationscertificate of the Issuer, dated as of such date requested by the Closing Date addressed Agent and signed by the chief executive officer and the chief financial officer of the Issuer, or by such other officers approved by the Agent, certifying certain facts specified by the Agent and relating to the Underwriters from Issuer and its affairs;
(d) the Issuer’s Canadian counsel in form Agent will have completed its due diligence review of the Issuer and content the results will have been satisfactory to the reasonable satisfaction Agent, in its sole discretion acting reasonably;
(e) the Issuer will have delivered to the Agent and its legal counsel such other certificates relating to the Private Placement or the affairs of the Underwriters’ Issuer as the Agent or its legal counsel may reasonably request; and
(f) each representation and warranty of the Issuer which is contained in this Agreement continues to be true in all material respects, and the Issuer will have performed or complied in all material respects with respect all of its covenants, agreements and obligations under this Agreement.
9.2 The Closing and the obligations of the Issuer and the Agent to complete the followingissue and sale of the Securities are subject to:
(a) receipt of all required regulatory approvals for or acceptance of the Exchange for:
(i) the Issuer:
(1) is a corporation incorporated and validly existing under issuance of the laws of its jurisdiction of incorporationSecurities; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number listing on the Exchange of the Shares, of which, as at the Closing Time, such numbers of Warrant Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Agent’s Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as removal or partial revocation of the Closing Date addressed any cease trading order or trading suspension made by any competent authority to the Underwriters from extent necessary to complete the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;Private Placement.
Appears in 1 contract
Conditions of Closing. 13.1 8.1 The Underwriters’ obligations under this Agreement will of Sprott hereunder shall be subject conditional upon Sprott receiving, and Sprott shall have the right on the Closing Date on behalf of subscribers for Common Shares to withdraw all Subscription Agreements delivered and not previously withdrawn by subscribers unless Sprott receives, on the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofClosing Date:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as opinion of the Closing Date addressed to the Underwriters from the Issuer’s Canadian Corporation's counsel in form and content substance reasonably satisfactory to the reasonable satisfaction of the Underwriters’ counsel Sprott, with respect to such matters, as Sprott may reasonably request relating to the following:
(i) purchase, including, without limitation: the Issuer:
(1) is a corporation incorporated due incorporation and validly existing under valid existence of the laws of its jurisdiction of incorporationCorporation; and
(2) has all necessary the corporate power, authority power and capacity to own or lease its property of the Corporation; the authorized capital of the Corporation; the Common Shares having been duly authorized, allotted and assets reserved for issuance and to carry on its Business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities assessable; the due and proper appointment of the Issuer;
(iii) to its knowledgeEscrow Agent under the Escrow Agreement; the due authorization, as execution, delivery and enforceability of this agreement, the Escrow Agreement, and the Subscription Agreements and the fulfilment of the Closing Time, except for terms hereof and thereof; that the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Common Shares have been validly issued or any of them do not and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will not result in a breach of, and do not and will not create a set of facts which, after notice or default under lapse of time or both, conflict with any of the terms, conditions or provisions of the constating documents articles of the Issuer Corporation, the by-laws or the any resolutions of its the directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each shareholders of the Canadian Preliminary ProspectusCorporation; compliance with all Applicable Securities Laws including, without limitation, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing receipt of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) regulatory approvals relating to the distribution of the Offered Common Shares; the distribution of the Common Shares complies, in all material respects, with all laws in the Province Canadian Selling Jurisdictions; the first trade in Common Shares received. It is understood that the Corporation's counsel may rely on the opinions of Quebec relating local counsel acceptable to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under them as to matters governed by the laws of each jurisdictions other than Quebec or Canada and on certificates of officers of the Qualifying Jurisdictions in order to qualify Corporation and the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation transfer agent of the Qualifying Jurisdictions and who have complied with the Common Shares as to relevant provisions matters of such applicable legislationfact;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as certificate of the Corporation dated the Closing Date Date, addressed to Sprott and signed on the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction Corporation's behalf by two senior officers of the Underwriters’ counsel with respect Corporation, acceptable to such matters as the Underwriters may reasonably requestSprott, including the followingacting reasonably, certifying that:
(i) The Registration Statement the Corporation has complied with and the U.S. Final Prospectussatisfied all covenants, as terms and conditions of their respective effective or issue dates, appear this agreement on their face its part to be appropriately responsive in all material respects complied with and satisfied at or prior to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and Closing Time other financial data included or incorporated than those which have been waived by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActSprott;
(ii) No consentthe representations and warranties of the Corporation set forth in this agreement are true and correct at the Closing Time, approvalas if made at such time;
(iii) no event of the nature referred to in subparagraphs 10.2(a) and (b) has occurred or to the knowledge of such officers is pending, authorization contemplated or order of, or filing, registration or qualification with, any Governmental Authority, which threatened;
(iv) the Corporation has not been made and/or obtained, taken on or made (other than as required by prior to the Closing Time, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any state securities laws, as applicable agreement or document to which such counsel expresses no opinion) the Corporation is required under any Applicable Law for a party or by which it is bound in respect of the issuance or execution and delivery of this agreement, the offering and sale of the Offered Common Shares or and the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body consummation of the United States of America. For purposes of this opinionother transactions contemplated hereby; and
(v) such other matters as may be reasonably requested by Sprott or Underwriter's counsel;
(c) definitive certificates representing, in the term “Applicable Law” means those lawsaggregate, rules and regulations all of the United States Common Shares subscribed for registered in such name or names as Sprott shall notify the Corporation in writing of America, in each case which are normally applicable not less than 24 hours prior to the transactions Closing Time provided such certificates registered in such names may be delivered in advance of the type contemplated by this Agreement;Closing Date to Sprott or such other parties in such locations as Sprott may direct and Sprott and the Corporation may agree upon; and
(d) executed copies of the Escrow Agreement and the Subscription Agreements, each in form and substance reasonably satisfactory to Sprott and Sprott counsel.
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will obligation of the Underwriters to purchase the Initial Units at the Closing Time on the Closing Date and to purchase any Additional Units at the Closing Time on an Option Closing Date shall be subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereoffollowing:
(a) the Underwriters will shall have received a legal opinion, subject certificate of status (or the equivalent thereof pursuant to customary limitations, assumptions the relevant governing legislation) dated within one business day prior to the Closing Date from the Company and qualificationsMMDC;
(b) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction Underwriters, signed by an officer of the Underwriters’ counsel such person with respect to the followingConstating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents, this Agreement, the Warrant Indenture and the certificates representing the Compensation Options, and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(c) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by the Co-Chief Executive Officer and the Chief Financial Officer of the Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Units or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since the beginning of the current financial year of the Company, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the OSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Shares and Warrants to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(d) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) the Underwriters shall have received a legal opinion addressed to the Underwriters, in the form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the Company, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) the Issuer:Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(1ii) the Company is a corporation incorporated duly amalgamated and validly existing under the laws of its jurisdiction of incorporation; and
(2) British Columbia, and has all necessary requisite corporate power, capacity and authority to carry on its business as now conducted and capacity to own or own, lease and operate its property and assets and to carry on its Business as presently conducted as described in the Final Prospectus;
(iiiii) as to the authorized and issued capital of the Company;
(iv) the Issuer is authorized rights, privileges, restrictions and conditions attaching to issue an unlimited number of the Shares, of which, as at the Closing Time, such numbers of Warrants and the Warrant Shares as noted are accurately summarized in all material respects in the Canadian Final Prospectus Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the case may be) of the Company and, in the case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non-assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable securities Common Shares;
(viii) the Compensation Options have been duly created, authorized and issued by the Company;
(ix) the Compensation Shares issuable upon the exercise of the Issuer;Compensation Options have been validly reserved for issuance by the Company and, upon the payment of the exercise price therefor and the issue thereof, the Compensation Shares will be validly issued as fully paid and non-assessable Common Shares
(x) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement, the Warrant Indenture and to issue the certificates representing the Compensation Options, and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to its knowledgegrant the Over-Allotment Option and offer, as issue, sell and deliver the Additional Shares and Additional Warrants comprising the Additional Units issuable upon exercise of the Closing TimeOver-Allotment Option; (iv) to issue, except for sell and deliver the 6.25% convertible subordinated unsecured debentures due June 30, 2019, Warrant Shares upon the 6.25% convertible subordinated unsecured debentures due June 30, 2018 exercise of the Warrants; and (v) to issue and grant the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Compensation Options and to issue the Compensation Shares will be issued and outstandingupon the exercise of the Compensation Options;
(ivxi) all necessary corporate action has been taken by the Issuer Company to authorize the creationexecution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Offered Shares, andInitial Shares and the Initial Warrants comprising the Initial Units, the Issuer having received grant of the consideration for Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over-Allotment Option, the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize Compensation Options and the execution Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery by of the Issuer Warrant Shares upon the exercise of the Warrants, and each of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and Warrant Indenture constitutes a legal, valid and binding obligation of the Issuer Company enforceable against it the Company in accordance with its terms, provided subject to appropriate qualifications that enforcement may be limited by bankruptcy, insolvency and other similar laws are customary of general application affecting the enforcement an offering of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable lawnature;
(vixiii) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Agreement and the consummation by Warrant Indenture and the Issuer fulfillment of the Offeringterms hereof and thereof, including the creationoffering, issuancecreation (as applicable), issue, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of this Agreementthe Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over- Allotment Option, the issuance and grant of the Compensation Options and the issuance of the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the Offeringtransactions contemplated by this Agreement and the Warrant Indenture, will not:
(1) conflict with or result in or will do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the constating documents articles of incorporation or amalgamation, as applicable, of the Issuer Company, or (ii) the resolutions laws of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach the Province of or default under any Ontario and the federal laws of Canada applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiestherein;
(viiixiv) each the form and terms of the Canadian Preliminary Prospectusdefinitive certificate representing the Common Shares and the Warrants have been approved by the directors of the Company and comply in all material respects with the BCBCA, the Canadian Amended Preliminary Prospectus articles and by-laws of the Company and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each rules of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the IssuerCSE;
(ixxv) Odyssey Trust Company is the distribution of duly appointed registrar and transfer agent for the Offered Common Shares compliesand Restricted Voting Shares and as Warrant agent, in all material respects, with all laws in registrar and transfer agent for the Province of Quebec relating to the use of the French language in connection therewithWarrants;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xixvi) all necessary documents have been filed, all requisite proceedings have been taken taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all other necessary legal requirements have been fulfilled under fulfilled, in order to qualify the laws distribution of the Initial Shares and the Initial Warrants comprising the Initial Units, the Compensation Options, the Over- Allotment Option and the Additional Shares and the Additional Warrants comprising the Additional Units in each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions Applicable Securities Laws and who have complied with the relevant provisions of such applicable legislationApplicable Laws;
(xiixvii) the TSX has conditionally approved issuance by the listing Company of (i) the Warrant Shares in accordance with and posting for trading pursuant to the terms and conditions of the Offered Warrants and the Warrant Indenture; and (ii) the Compensation Shares subject upon the exercise of the Compensation Options, is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to fulfilling be filed, no proceeding is required to be taken and no approval, permit or consent of the Standard Listing Conditions Securities Commissions is required to be obtained by the date required by Company under the TSXApplicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares and the Compensation Shares;
(xiiixviii) provided the Offered first trade in Warrant Shares are listed on a designated stock exchange, as defined underlying the Warrants and the Compensation Shares underlying the Compensation Options is exempt from the prospectus requirements of the Applicable Securities Laws in the Tax ActQualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent or authorization of regulatory authorities is required to be obtained by the Offered Shares will be qualified investments Company under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors Applicable Securities Laws of the Issuer are duly appointed.
(b) Qualifying Jurisdictions to permit such trade through registrants registered under Applicable Securities Laws who have complied with such laws and the Underwriters will have received a legal opinionterms and conditions of their registration, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
provided that (i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption such trade is not a “Certain United States Federal Income Tax Considerations,control distribution” as to which that term is defined in National Instrument 45-102 – Resale of Securities at the time of such counsel expresses no opinion; the Form F-Xtrade, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consentthe Company is a reporting issuer (as defined under Applicable Securities Laws) at the time of such first trade, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;and
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject following are conditions precedent to the following conditions being fulfilled which are for the exclusive benefit obligations of the UnderwritersAgents to complete the Closing and of the Purchasers to purchase the Shares at the Closing Time, any of which conditions the Company covenants and agrees to use its reasonable best efforts to fulfil within the time set out herein therefor, and which conditions may be waived, waived in writing in whole or in part, part by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofAgents:
(a) the Underwriters will have received a Company shall cause its counsel, Stikeman to deliver to the Agents legal opinion, subject to customary limitations, assumptions opinions dated and qualifications, dated as of delivered on the Closing Date addressed to the Underwriters from the Issuer’s Canadian counsel Date, in form and content substance satisfactory to the reasonable satisfaction of the Underwriters’ counsel Agents acting reasonably, with respect to the followingfollowing matters:
(i) the Issuer:
(1) Company is a corporation incorporated “reporting issuer”, or its equivalent, in each of the Qualifying Provinces and validly existing under it is not on the laws list of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in defaulting reporting issuers maintained by the Final ProspectusCanadian Securities Regulators;
(ii) the Issuer Company is authorized a corporation existing under the laws of Yukon and has all requisite corporate power to issue an unlimited number of Sharescarry on its business as now conducted and to own, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued lease and outstanding as fully paid operate its property and non-assessable securities of the Issuerassets;
(iii) to its knowledge, as the authorized and issued and outstanding share capital of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingCompany;
(iv) the Company has all necessary corporate action has been taken by capacity, power and authority: (A) to execute and deliver this Agreement and the Issuer Compensation Option Certificates and to authorize perform its obligations hereunder and thereunder; (B) to create, issue and sell the creation, issue, sale Shares and delivery the Compensation Options; and (C) to issue the Compensation Shares issuable upon exercise of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the IssuerCompensation Options in accordance with their terms;
(v) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators;
(vi) upon the payment therefor, the Shares will have been validly issued as fully paid and non-assessable shares in the capital of the Company;
(vii) the Compensation Options have been validly created;
(viii) the Compensation Shares issuable upon the exercise of the Compensation Options have been authorized and allotted for issuance and, upon the exercise of the Compensation Options in accordance with the provisions thereof, such Compensation Shares will be validly issued as fully paid and non-assessable Common Shares;
(ix) all necessary corporate action has been taken by the Issuer Company to authorize the execution and delivery of this Agreement and the Compensation Option Certificates and the performance of its obligations hereunder, hereunder and thereunder and this Agreement has and the Compensation Option Certificates have been duly executed and delivered by the Issuer Company and constitutes a constitute legal, valid and binding obligation obligations of the Issuer Company enforceable against it in accordance with its their terms, provided that enforcement may be limited by subject to bankruptcy, insolvency and other similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(viix) the execution rights, privileges, restrictions and conditions attaching to the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, are accurately summarized in all material respects, with all laws respects in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying JurisdictionFinal Prospectus;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under approvals, permits and consents of the laws of appropriate regulatory authority in each of the Qualifying Jurisdictions in order Provinces have been obtained by the Company to qualify the Offered Shares for distribution and sale to the public of the Shares and the grant, issuance and delivery of the Compensation Options to the Agents in each of the Qualifying Provinces through investment dealers or brokers persons who are registered under applicable legislation of the Qualifying Jurisdictions Securities Laws and who have complied with the relevant provisions of such applicable legislationSecurities Laws;
(xii) the issue by the Company of the Compensation Shares to be issued upon exercise of the Compensation Options is exempt from, or is not subject to, the prospectus and registration requirements of the Securities Laws of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained by the Company under the Securities Laws of the Qualifying Provinces in respect of such distribution;
(xiii) the first trade in, or resale of, the Compensation Shares issuable upon exercise of the Compensation Options is exempt from, or is not subject to, the prospectus requirements of the Securities Laws of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under such Securities Laws in respect of such trade;
(xiv) subject only to the TSX has Listing Conditions, the Shares and the Compensation Shares have been conditionally approved the for listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by on the TSX;
(xiiixv) provided the Offered Shares are and the Compensation Shares will be listed on a designated stock exchange, as defined in the Tax ActNASDAQ;
(xvi) the execution and delivery of this Agreement and the Compensation Option Certificates, the Offered fulfilment of the terms hereof and thereof by the Company and the issuance, sale and delivery of the Shares to be issued and sold by the Company at the Closing Time and the issuance of the Compensation Options and the Compensation Shares 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, and do not and will not conflict with: (A) the provisions of any law, statute, rule or regulation to which the Company is subject; (B) the constating documents of the Company; (C) any resolutions of the shareholders or directors of the Company of which Stikeman has knowledge; or (D) any judgment, order or decree of any court, governmental agency or body or regulatory authority having jurisdiction over the Company of which Stikeman has knowledge;
(xvii) Computershare Investor Services Inc. has been duly appointed as the transfer agent and registrar for the Common Shares; and
(xviii) the Shares will be qualified investments under the Income Tax Act (Canada) and the regulations thereunder for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts;
(xiv) . In connection with such opinion, Stikeman may rely on the Trust Companyopinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agents, at its principal offices in Torontoacting reasonably, has been duly appointed as to certain corporate and securities matters relating to the registrar Company and transfer agent as to the qualification for distribution of the Shares and the Compensation Options or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the Shares; and
(xv) laws of jurisdictions other than the directors province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Issuer are duly appointed.Company and others;
(b) if any Shares are offered and sold by the Underwriters Agents, through the U.S. Affiliates, in the United States, the Company shall cause its United States counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver a favourable legal opinion addressed to the Agents, such opinion to be subject to such qualifications and assumptions as the Agents may agree, acting reasonably, to the effect that no registration of the Shares offered and sold in the United States will be required under the U.S. Securities Act in connection with the offer and sale of the Shares in the United States, provided such offers and sales are made in accordance with Schedule “A” hereto, it being understood that such counsel need not express its opinion with respect to any subsequent resales of the Shares and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Company and others;
(c) the Agents shall have received a favourable legal opinionopinions addressed to the Agents in form and substance satisfactory to the Agents, subject to customary limitations, assumptions and qualificationsacting reasonably, dated as of the Closing Date addressed Date, from counsel to the Underwriters from the Issuer’s U.S. securities Subsidiary, which counsel in form turn may rely, as to matters of fact, on certificates of auditors, public officials and content to the reasonable satisfaction officers of the Underwriters’ counsel Subsidiary, as appropriate, with respect to such matters as the Underwriters may reasonably request, including the followingfollowing matters:
(i) The Registration Statement the Subsidiary is a corporation existing under the laws of the jurisdiction in which it was incorporated, amalgamated or continued, as the case may be, and has all requisite corporate capacity, power and authority to carry on its business as now conducted and to own, lease and operate its property and assets; and
(ii) as to the authorized share capital of the Subsidiary, as to the issued and outstanding share capital of the Subsidiary and all of the issued and outstanding shares of the Subsidiary are registered directly in the name of the Company;
(d) the Agents shall have received a certificate, dated as of the Closing Date, signed by the Corporate Secretary of the Company, or such other officer(s) of the Company as the Agents may agree, certifying for and on behalf of the Company, to the best of the knowledge, information and belief of the persons so signing, that the copies attached to the certificate of: (i) the articles and by-laws of the Company; (ii) the resolutions of the Company’s board of directors relevant to the issue and sale of the Shares to be issued and sold by the Company and the U.S. Final Prospectusauthorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Company, are true and correct copies;
(e) the Company shall cause the Company’s Auditors to deliver to the Agents a comfort letter, dated as of their respective effective the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 5(a)(iii) hereof;
(f) the Agents shall have received a certificate, dated as of the Closing Date, signed by the President and the Chief Financial Officer of the Company, or issue datessuch other officers of the Company as the Agents may agree, appear certifying for and on their face behalf of the Company, to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Company has complied with all the covenants and satisfied all the terms and conditions of this Agreement on its part to be appropriately responsive in all material respects complied with and satisfied at or prior to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities ActClosing Time;
(ii) No consentthe representations and warranties of the Company contained herein are true and correct as at the Closing Time, approvalwith the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) receipts or decision documents have been issued by the Canadian Securities Regulators for the Final Prospectus and no order, authorization ruling or order ofdetermination having the effect of ceasing the trading or suspending the sale of the Common Shares or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or filingthreatened under any Securities Laws or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Final Prospectus (A) there has been no material change (actual, registration anticipated, contemplated, proposed, threatened, whether financial or qualification withotherwise) in the assets, any Governmental Authorityliabilities (contingent or otherwise), business, affairs, operations, prospects, capital or control of the Company on a consolidated basis, and (B) no transaction has been entered into by either the Company or the Subsidiary which has not been obtainedis material to the Company on a consolidated basis, taken or made (other than as required by any state securities lawsdisclosed in the Final Prospectus or the Supplementary Material, as the case may be; and
(v) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which such counsel expresses no opinionwould result in a misrepresentation in the Final Prospecutus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(g) is required under any Applicable Law the Agents shall have received copies of correspondence indicating that the Company has obtained all necessary approvals for the issuance Shares and Compensation Shares to be listed on the TSX, subject only to the TSX Listing Conditions;
(h) the Agents shall have completed and be satisfied, in their sole discretion, with the results of their due diligence investigations regarding the Company, its business, operations and financial condition and market conditions at the Closing Time;
(i) the Agents shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(j) the Agents shall have received a certificate of status or sale the equivalent in respect of the Offered Shares or Company and the performance Subsidiary issued by the Issuer of its obligations under this Agreement. For purposes of this opinion, appropriate regulatory authority in each jurisdiction in which the term “Governmental Authority” means any executive, legislative, judicial, administrative Company and the Subsidiary are incorporated;
(k) the Agents shall have received a reporting issuer certificate or regulatory body report for the Company for each of the United States provinces of America. For purposes British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia and New Brunswick that provide such certificates confirming that the Company is a reporting issuer not in default of this opinion, applicable Securities Laws; and
(l) the term “Applicable Law” means those laws, rules and regulations of Agents shall have received the United States of America, in each case which are normally applicable undertakings required to the transactions of the type contemplated by this Agreement;be delivered pursuant to subsection 7(k) hereof.
Appears in 1 contract
Conditions of Closing. 13.1 The Underwriters’ obligations under Agent’s obligation to complete the Closing pursuant to this Agreement will (including the obligation to arrange for the purchase and sale of the FT Units at the Closing Time) shall be subject to conditional upon the fulfilment at or before the Closing Time of the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofconditions:
(a) the Underwriters will Agent shall have received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualificationscertificate, dated as of the Closing Date addressed to Date, signed by the Underwriters from the Issuer’s Canadian counsel in form Chief Executive Officer and content to the reasonable satisfaction Chief Financial Officer of the Underwriters’ counsel with respect to Company, or such other officers of the followingCompany as the Agent may agree, without personal liability, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the Issuereffect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no Material Adverse Effect (actual or proposed, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Agent shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by appropriate officers of the Company addressed to the Agent with respect to the articles and by-laws of the Company, all resolutions of the Company’s board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Agent may reasonably request;
(c) the Company shall have made and/or obtained all necessary filings, approvals, permits, consents and authorizations to or from, as the case may be, the board of directors and shareholders of the Company, the Securities Regulators, the TSXV, and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Agent, acting reasonably;
(d) the FT Unit Shares and the Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Agent shall have received favourable legal opinions addressed to the Agent, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances: as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company; and on certificates of the Company’s Auditors or a public official) with respect to the following matters:
(1i) is a corporation incorporated as to the subsistence of the Company under the laws of the Province of Ontario and validly existing as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Securities;
(ii) as to the authorized and issued capital of the Company;
(iii) the Company has all requisite corporate power and capacity under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and existence to carry on its Business business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized carried on and to issue an unlimited number of Sharesown, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued lease and outstanding as fully paid operate its properties and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstandingassets;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale execution and delivery of the Offered Shares, andTransaction Documents, the Issuer having received performance by the consideration for Company of its obligations thereunder, the issue thereof, Offered Shares have been validly issued sale and are outstanding as fully paid and non-assessable shares issuance of the IssuerOffered Securities, do not and will not conflict with or result in any breach of the articles or by-laws of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has Transaction Documents have been duly authorized and executed and delivered by the Issuer Company, and constitutes a legal, constitute valid and legally binding obligation obligations of the Issuer Company enforceable against it in accordance with its terms, provided that except as enforcement thereof may be limited by bankruptcy, insolvency and other insolvency, liquidation, reorganization, moratorium or similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and other except as limited by the application of equitable principles when equitable remedies may be granted only in are sought, and the discretion qualification that the enforceability of a court of competent jurisdiction and that rights of indemnity and/or and contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, the FT Unit Shares have been duly and no filing, registration or recording with, any Governmental Entity is required validly issued as fully paid and non- assessable Common Shares in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer capital of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtainedCompany;
(vii) the execution FT Warrants have been duly and validly created and issued and the delivery of this AgreementWarrant Shares have been allotted and authorized for issuance and, and upon the consummation due exercise of the Offering, will not:
(1) conflict FT Warrants in accordance with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents Warrant Certificate, including payment of the Issuer or exercise price therefor, the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiesWarrant Shares will be validly issued as fully paid and non-assessable Common Shares;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus FT Unit Shares and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions Warrant Shares have been duly conditionally approved for listing and authorized by all necessary corporate action posting for trading on the TSXV, subject only to satisfaction by the Issuer, and each Company of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed certain standard post-closing conditions imposed by the IssuerTSXV;
(ix) the distribution offering, sale and issuance by the Company of the Offered FT Units, and underlying FT Unit Shares compliesand FT Warrants, in all material respects, accordance with all laws in the Province terms of Quebec relating to this Agreement is exempt from the use prospectus requirements of the French language Canadian Securities Laws of the Offering Jurisdictions, and no filing, proceeding, approval, permit, consent or authorization is required to be made, taken or obtained under Canadian Securities Laws other than filing with the applicable provincial securities regulatory authorities within the prescribed time periods, a report in connection therewithForm 45-106F1, as prescribed by National Instrument 45-106 – Prospectus Exemptions, prepared and executed in accordance with Canadian Securities Laws, together with the requisite filing fees;
(x) the Issuer no prospectus is a reporting issuer required nor are any other documents, proceedings or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default approvals, permits, consents or authorizations of regulatory authorities required to be filed, taken or obtained (other than those which have been filed, taken or obtained) under the Canadian Securities Laws to permit the issuance by the Company of any Qualifying Jurisdictionthe Warrant Shares on due exercise of the FT Warrants in accordance with their terms;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each first trade by a purchaser of the Qualifying Jurisdictions in order to qualify the Offered FT Unit Shares, FT Warrants and Warrant Shares for will be a distribution and sale subject to the public through investment dealers or brokers who are registered under applicable legislation prospectus requirements of Canadian Securities Laws unless:
(A) at the time of the Qualifying Jurisdictions trade, the Company is and who has been a “reporting issuer”, as defined in Canadian Securities Laws, in a province or territory of Canada for the four months immediately preceding the trade;
(B) at the time of the trade, at least four months have complied with elapsed from the relevant provisions date of such applicable legislationthe issue of the FT Unit Shares, FT Warrants or Warrant Shares;
(C) the certificates representing the securities that are the subject of the trade carry a legend in the form as set out in Section 2.5(2)3(i) of National Instrument 45-102 - Resale of Securities (“NI 45-102”);
(D) the trade is not a “control distribution” as defined in NI 45-102;
(E) no unusual effort is made to prepare the market or create a demand for the securities that are the subject of the trade;
(F) no extraordinary commission or consideration is paid to a person or company in respect of the trade; and
(G) if the purchaser is an insider or officer of the Company at the time of the trade, the purchaser has no reasonable grounds to believe that the Company is in default of Canadian Securities Laws;
(xii) except as a result of any Follow-On Transaction or any agreement, arrangement, undertaking or understanding to which the TSX Company is not a party and of which it has conditionally approved no knowledge, upon issuance, the listing FT Unit Shares and posting for trading the FT Warrants will be “flow-through shares” as defined in subsection 66(15) of the Offered Shares subject Tax Act and will not be “prescribed shares” or “prescribed rights” within the meaning of section 6202.1 of the regulations to fulfilling the Standard Listing Conditions by the date required by the TSXTax Act;
(xiii) provided as to such other matters that are typically subject to opinions in transactions of this nature as the Offered Shares are listed on a designated stock exchange, as defined in Agent’s legal counsel may reasonably request prior to the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accountsClosing Time;
(xivf) the Trust CompanyAgent shall have received a favourable legal opinion addressed to the Agent, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, as to: the incorporation or formation and subsistence of the Subsidiary; the corporate power and capacity of the Subsidiary under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets; and the authorized and issued capital of the Subsidiary and the ownership thereof, in a form satisfactory to the Agent and its counsel, acting reasonably;
(g) the Agent shall have received a favourable legal opinion addressed to the Agent, dated the Closing Date, in form and substance satisfactory to the Agent’s counsel, acting reasonably, that the ▇▇▇▇▇▇▇▇ Property is in good standing at its principal offices in Torontothe date hereof, has the annual dues having been paid and the statutory work having been duly appointed executed and reported and such other matters as the registrar and transfer agent Agent may reasonably request;
(h) the Agent shall have received certificates of status or similar certificates with respect to the Sharesjurisdiction in which the Company and the Subsidiary are existing;
(i) the Agent shall have received a certificate from the Transfer Agent of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(xvj) the directors of the Issuer are duly appointed.
(b) the Underwriters will Agent shall have received a legal opinion, subject such other documents as the Agent or its counsel may reasonably request prior to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;Time.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will ' obligation to purchase any Initial Units at the Closing Time shall be subject to conditional upon the fulfilment at or before the Closing Time of the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereofconditions:
(a) the Underwriters will shall have received at the Closing Time a legal opinion, subject to customary limitations, assumptions and qualificationscertificate, dated as of the Closing Date addressed to Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters from the Issuer’s Canadian counsel in form may agree, certifying for and content to the reasonable satisfaction on behalf of the Underwriters’ counsel with respect to the followingCompany that:
(i) no order, ruling or determination having the Issuereffect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Prospectus (except the Underwriters Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Securities, the Over-Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriters may reasonably request;
(c) the Company shall have made and/or obtained all necessary filings, approvals, permits, consents and authorizations to or from, as the case may be, the board of directors and shareholders of the Company, the Securities Regulators, the TSXV, and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Underwriters, acting reasonably;
(d) the Unit Shares, the Warrant Shares, and the Broker Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, counsel to the Company, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and their counsel, acting reasonably, with respect to the following matters:
(1i) is a corporation incorporated as to the incorporation and validly existing subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Securities, grant the Over-Allotment Option and issue the Warrant Shares and Broker Securities;
(ii) as to the authorized and issued capital of the Company;
(iii) the Company has all requisite corporate power and capacity under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and existence to carry on its Business business as presently conducted carried on and to own, lease and operate its properties and assets as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale execution and delivery of the Offered Shares, andTransaction Documents, the Issuer having received performance by the consideration for Company of its obligations thereunder, the issue thereof, Offered Shares have been validly issued sale and are outstanding as fully paid and non-assessable shares issuance of the IssuerOffered Securities, the grant of the Over-Allotment Option and the issuance of the Warrant Shares and Broker Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) all necessary corporate action has been taken to authorize each of the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has Transaction Documents have been duly authorized and executed and delivered by the Issuer Company, and constitutes a legal, constitute valid and legally binding obligation obligations of the Issuer Company enforceable against it in accordance with its terms, provided that except as enforcement thereof may be limited by bankruptcy, insolvency and other insolvency, liquidation, reorganization, moratorium or similar laws of general application affecting the enforcement rights of creditors’ rights generally, specific performance, injunctive relief creditors generally and other except as limited by the application of equitable principles when equitable remedies may be granted only in are sought, and the discretion qualification that the enforceability of a court of competent jurisdiction and that rights of indemnity and/or and contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with all necessary corporate action has been taken by the Company to authorize the execution and delivery by of each of the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, Base Shelf Prospectus and the consummation by Prospectus Supplement and the Issuer filing thereof with the Securities Regulators, the filing of the Offering, including Marketing Document with the creation, issuance, sale Securities Regulators and the delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtainedU.S. Private Placement Memorandum;
(vii) the execution Unit Shares, other than the Over-Allotment Unit Shares issuable at any Option Closing Time, have been duly and the delivery of this Agreement, validly issued as fully paid and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or propertiesnon-assessable Common Shares;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions Warrants have been duly approved and authorized by all necessary corporate action by validly created and, other than the IssuerWarrants issuable at any Option Closing Time, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuerissued;
(ix) the distribution Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Offered Shares complies, Warrants in all material respects, accordance with all laws in the Province of Quebec relating to the use provisions of the French language in connection therewithWarrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non- assessable Common Shares;
(x) the Issuer is a reporting issuer or Broker Warrants have been duly and validly created and, other than the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of Broker Warrants issuable at any Qualifying JurisdictionOption Closing Time, issued;
(xi) the Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(xii) all necessary corporate action has been taken by the Company to authorize the issuance of the Additional Securities, subject to receipt of payment in full for them, and the issuance of the additional Broker Warrants, and when issued and delivered, the Additional Securities and the additional Broker Warrants will be duly and validly issued by the Company and the Over-Allotment Unit Shares will be outstanding as fully paid and non-assessable Common Shares;
(xiii) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Warrant Shares, the Over-Allotment Option and the Broker Securities conform in all material respects with the description thereof set forth in the Prospectus;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under approvals, permits, consents and authorizations of the laws of Securities Regulators in each of the Qualifying Jurisdictions in order have been obtained by the Company to qualify the Offered Shares for distribution and sale to the public of the Offered Securities in each of the Qualifying Jurisdictions through investment dealers or brokers persons who are registered under applicable legislation Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Broker Warrants to the Underwriters;
(xv) the issuance by the Company of the Warrant Shares upon the due exercise of the Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislationin connection therewith;
(xiixvi) the TSX has issuance by the Company of the Broker Warrant Shares upon the due exercise of the Broker Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xvii) the first trade in, or resale of, the Warrants Shares or the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as defined in National Instrument 45-102 - Resale of Securities);
(xviii) the Unit Shares, the Warrant Shares, and Broker Warrant Shares have been conditionally approved the for listing and posting for trading of on the Offered Shares TSXV, subject only to fulfilling the Standard Listing Conditions satisfaction by the date required Company of certain standard post-closing conditions imposed by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the SharesTSXV; and
(xvxix) as to such other matters as the directors of Underwriters' legal counsel may reasonably request prior to the Issuer are duly appointed.Closing Time;
(bf) the Underwriters will shall have received a favourable legal opinionopinion addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, as to: (i) the incorporation and subsistence of Canam and Spinco, (ii) the corporate power and capacity of Canam and Spinco under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam and Spinco and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(g) the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, tax counsel to the Company, such opinion to be subject to customary limitationsstandard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Prospectus Supplement under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and qualificationslimitations set out under such heading;
(h) if any Offered Securities are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that no registration of the Offered Securities offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Securities to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Securities;
(i) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, as to title to the mineral concessions comprising the ▇▇▇▇▇▇ Property;
(j) the Underwriters shall have received from the Company's Auditors a letter, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel Date, in form and content substance satisfactory to the reasonable satisfaction Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(k) the Underwriters shall have received executed copies of all the lock-up agreements requested by the Underwriters pursuant to Section 6(l) in form and substance satisfactory to the Underwriters’ counsel , acting reasonably;
(l) the Underwriters shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company, Canam and Spinco are existing;
(m) the Underwriters shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(n) the Underwriters shall have received such matters other documents as the Underwriters or its counsel may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects request prior to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;Closing Time.
Appears in 1 contract
Conditions of Closing. 13.1 (a) The Underwriters’ obligations under this Agreement will be of the Company hereunder in connection with the Closing are subject to the following conditions being fulfilled which are for the exclusive benefit of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the followingmet:
(i) the Issuer:
accuracy in all material respects (1or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) is on the Closing Date of the representations and warranties of the Subscriber contained herein (unless as of a corporation incorporated and validly existing under the laws specific date therein in which case they shall be accurate as of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectussuch date);
(ii) all obligations, covenants and agreements of the Issuer is authorized Subscriber required to issue an unlimited number of Shares, of which, as be performed at or prior to the Closing Time, such numbers of Shares as noted in Date shall have been performed; and
(iii) the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities delivery by the Subscriber of the Issueritems set forth in Section 4(b) of this Unit Purchase Agreement.
(b) The obligations of the Subscriber hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 4(a) of this Unit Purchase Agreement;
(iv) there shall have been no Material Adverse Effect with respect to its knowledgethe Company since the date hereof;
(v) the Unit Shares (I) shall be listed on the TSXV and (II) shall not have been suspended, as of the Closing TimeDate, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of Administrators or the TSXV from trading on the TSXV nor shall the Canadian Securities Administrators or the TSXV have threatened any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions suspension in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated writing as of the Closing Date addressed nor shall the Company have failed to meet the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the minimum listing maintenance requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinionTSXV; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;and
(iivi) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not TSXV Approval shall have been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;.
Appears in 1 contract
Sources: Unit Purchase Agreement
Conditions of Closing. 13.1 The Underwriters’ obligations under this Agreement will be subject to the following conditions being fulfilled which are for the exclusive benefit 5.1 Closing of the Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereoftransaction contemplated hereby is subject to:
(a) completion of the Underwriters Plan of Arrangement;
(b) confirmation, in form satisfactory to APT, acting reasonably, that on closing of the transactions contemplated hereby the shares of APT Canada will have received a legal opinionbe listed and posted for trading on the TSX Venture Exchange;
(c) exercise by APT Canada of the conversion rights granted under that loan agreement between APT and Thrilltime dated May 25, subject 2006 (the “Loan Agreement”), as assigned to customary limitationsAPT Canada effective September 15, assumptions 2006, including advance of the balance of the CDN$300,000 contemplated by the Loan Agreement, and qualifications, dated issuance of 4,000,000 shares of APT Class A Common Stock in exchange (the “APT Loan Conversion Shares”);
(d) as of the Closing Date addressed APT Canada will have a minimum of CAD$2,100,000 of working capital (calculated prior to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction assumption of the Underwriters’ counsel with respect to the following:
(icosts of APT as contemplated by Section 7(c) the Issuer:
(1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or lease its property and assets and to carry on its Business as presently conducted as described in the Final Prospectusherein);
(iie) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus Date APT Canada will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2019, the 6.25% convertible subordinated unsecured debentures due June 30, 2018 and the 6.75% convertible subordinated unsecured debentures due June 30, 2015, have no securities exchangeable or convertible into Shares will be more than 52,007,297 shares issued and outstanding;
(ivf) all necessary corporate action has been taken by the Issuer each of APT and APT Canada shall have entered into employment agreements with ▇▇▇▇▇▇ on terms acceptable to authorize the creation▇▇▇▇▇▇, issueacting reasonably, sale and delivery which employment agreements shall provide for “change of control” provisions whereby ▇▇▇▇▇▇ would be entitled to three years’ salary in circumstances where a “change of control” of APT Canada were to occur, it being acknowledged that these provisions will expire in circumstances where ▇▇▇▇▇▇ was to dispose of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the IssuerAPT held by him;
(vg) all necessary corporate action has representations, warranties, certifications, confirmations and other statements made in or pursuant to this Subscription Agreement being accurate and complete in all material respects on and as of the Closing Date;
(h) there having been taken to authorize no material adverse change in the affairs, prospects or financial status of APT Canada or APT between the date of execution and delivery by the Issuer of this Subscription Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable lawClosing Date;
(vii) no consent▇▇▇▇▇▇ and APT Canada shall have entered into an agreement which will provide that management of APT Canada will take such steps as are required to ensure that the board of APT Canada will consist of five members, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer three of this Agreement, or the performance by the Issuer which members shall be nominees of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to qualify the Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares▇▇▇▇▇▇; and
(xvj) the directors of the Issuer are duly appointed.
(b) the Underwriters will ▇▇▇▇▇▇ and APT Canada shall have received entered into a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel shareholders agreement with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive shareholdings in all material respects to the requirements of the U.S. Securities Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental AuthorityAPT, which has not been obtained, taken or made (other than as required by any state securities laws, as agreement shall include a right of first refusal in favour of APT Canada in respect of ▇▇▇▇▇▇’▇ holdings in APT and provisions to which such counsel expresses no opinion) is required under any Applicable Law for ensure that the issuance or sale shareholdings of APT Canada in APT will at all times equal the Offered Shares or the performance by the Issuer then issued and outstanding share capital of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;APT Canada.
Appears in 1 contract
Sources: Subscription Agreement (Advanced Proteome Therapeutics CORP)