Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows: (a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses and any supplements and amendments thereto or to the Registration Statement as you may reasonably request. (b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Final Prospectus. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement. (c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectuses, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object. (d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object. (e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law. (g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) so that the statements in the Prospectuses as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectuses, as amended or supplemented, will comply with applicable law. (h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request. (i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. (j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the Prospectuses, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(h), hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the document production charges and expenses associated with printing this Agreement, and (viii) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section. (k) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges. (l) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 3 contracts
Sources: Underwriting Agreement (Sprott Physical Silver Trust), Underwriting Agreement (Sprott Physical Gold Trust), Underwriting Agreement (Sprott Physical Silver Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Final Prospectus. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectuses, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) so that the statements in the Prospectuses as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectuses, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the Prospectuses, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(h), hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the document production charges and expenses associated with printing this Agreement, and (viii) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section; provided, however, that if the transactions contemplated by this Agreement are consummated, the Underwriters shall reimburse the Trust for the out-of-pocket fees, disbursements and expenses of the Trust and the Trust’s and the Manager’s counsel and accountants actually incurred by the Trust or the Manager in connection with the transactions contemplated by this Agreement.
(k) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(l) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Silver Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Final Prospectus. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectuses, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) so that the statements in the Prospectuses as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectuses, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the Prospectuses, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(h), hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the document production charges and expenses associated with printing this Agreement, and (viii) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section; provided, however, that if the transactions contemplated by this Agreement are consummated, the Underwriters shall reimburse the Trust for the out-of-pocket fees, disbursements and expenses of the Trust’s and the Manager’s counsel and accountants actually incurred by the Trust or the Manager in connection with the transactions contemplated by this Agreement, in an aggregate amount not to exceed $125,000.
(k) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(l) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Gold Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Final Prospectus. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectuses, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) so that the statements in the Prospectuses as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectuses, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the Prospectuses, any Marketing Materials, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(h), hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the document production charges and expenses associated with printing this Agreement, and (viii) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section.;
(k) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(l) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not during the period ending 90 60 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Silver Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC Incorporated (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the second amended and restated Canadian Preliminary Prospectus preliminary prospectus (and each amendment thereto) and Canadian Final Supplemental Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Supplemental Prospectus given forthwith after the applicable Preliminary Receipt or the Final ProspectusReceipt, as applicable, has been issued. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Supplemental Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the ProspectusesProspectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule and file with the Canadian Securities Commissions any prospectus or amendment or supplement thereto in accordance with the requirements of Canadian Securities Laws, including NP 44-103.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) Prospectus so that the statements in the Prospectuses Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the ProspectusesProspectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) To prepare and file with the OSC and the other Canadian Securities Commissions promptly after the execution and delivery of this Agreement, a supplemented prospectus in the English and French languages in compliance in all respects with National Instrument 44-103 (the “Canadian Supplemental Prospectus”), in a form reasonably satisfactory to the Underwriters, such filing to occur not later than 5:00 p.m. (Toronto time) on , 2010.
(k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust Manager shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the ProspectusesProspectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including excluding all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositarydepositary (which shall be paid by the Trust), but including all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws and Canadian Securities Laws as provided in Section Sections 6(h), ) and 6(j) hereof, including any filing fees, but excluding the reasonable fees and disbursements of counsel for the Underwriters, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form F-1 (or such other form that may be used by the Trust or the Manager to register the Trust Units under the Exchange Act) relating to the Trust Units and all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the costs and expenses of the Trust and the Manager relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Trust or the Manager, travel and lodging expenses of the representatives and officers of the Trust and the Manager and any such consultants (for avoidance of doubt, the foregoing shall in no event include travel expenses of the Underwriters), and the cost of any aircraft chartered in connection with the road show, (viii) the document production charges and expenses associated with printing this Agreement, and (viiiix) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay fees and disbursements of their counsel. The Underwriters agree to reimburse the Manager for any reasonable, out-of-pocket expenses actually incurred by the Manager that are incident to the performance of the Trust’s and the Manager’s obligations under this Agreement in an aggregate amount not to exceed the greater of: (A) $ multiplied by the number of Units sold to certain institutional investors as agreed between the Manager and the Underwriters, and (B) $1,000,000.
(kl) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(l) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Gold Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter and each Agent as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter and Agent a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC Incorporated (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Prospectus to be delivered to or as directed by the Underwriters and the Agents without charge, in such numbers and in such cities as the Underwriters and the Agents may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Final Prospectus. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectuses, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter Underwriter, an Agent or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter or an Agent that the Underwriter or Agent otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the UnderwritersUnderwriters and the Agents, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and the Agents and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters and the Agents either of the Prospectuses (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter Underwriter, Agent or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the UnderwritersUnderwriters and the Agents, it is necessary to amend or supplement the Prospectuses (or one of them) to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and the Agents and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters or Agents and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) so that the statements in the Prospectuses as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectuses, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the Prospectuses, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters Underwriters, Agents and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the UnderwritersUnderwriters and Agents, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(h), hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the document production charges and expenses associated with printing this Agreement, and (viii) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder and under the Subscription Agreements for which provision is not otherwise made in this Section.
(k) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(l) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the UnderwritersUnderwriters and the Agents, that the Trust will not not: (A) during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, Units or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, ; or (3B) during the period ending 45 days after the Closing Date file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
(m) If one or more of the Institutional Investors that have agreed to purchase Direct Units under the Subscription Agreements do not perform or comply with their obligations or duties under the relevant Subscription Agreement (including any such obligations or duties modified by this Agreement) on or prior to the time set for the closing of the issuance and sale of Firm Units on the Closing Date or advise the Trust or the Manager that it or they do not intend to perform or comply with such obligations and duties, then the Trust and the Manager shall forthwith on the request of the Agents assign to the Agents all the rights and the benefits of the Trust and the Manager under such Subscription Agreement necessary for the Agents to enforce such Subscription Agreement, including the right to initiate an action to obtain damages from or other relief against such Institutional Investor related to such non-performance or non-compliance. The Trust and the Manager further agree that they shall notify the Agents forthwith on being advised by an Institutional Investor that it does not intend to perform or comply with its obligations and duties relating to the purchase of the Direct Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Gold Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC Incorporated (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Supplemental Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Supplemental Prospectus given forthwith after the applicable Preliminary Receipt or the Final ProspectusReceipt, as applicable, has been issued. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Supplemental Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the ProspectusesProspectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule and file with the Canadian Securities Commissions any prospectus or amendment or supplement thereto in accordance with the requirements of Canadian Securities Laws, including NP 44-103.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) Prospectus so that the statements in the Prospectuses Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the ProspectusesProspectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) To prepare and file with the OSC and the other Canadian Securities Commissions promptly after the execution and delivery of this Agreement, a supplemented PREP prospectus in the English and French languages in compliance in all respects with NI 41-101 and NI 44-103 (the “Canadian Supplemental Prospectus”), in a form reasonably satisfactory to the Underwriters, such filing to occur not later than 11:00 p.m. (Toronto time) on [·], 2010.
(A) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust Manager shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the ProspectusesProspectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specifiedspecified and the fees, disbursements and expenses of the Trust’s accountants, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws and Canadian Securities Laws as provided in Section Sections 6(h), ) and 6(j) hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred expenses in connection with the review preparation and qualification filing of the offering of the Units registration statement on Form F-1 (or such other form that may be used by the Financial Industry Regulatory Authority, (vTrust or the Manager to register the Trust Units under the Exchange Act) relating to the Trust Units and all costs and expenses incident to listing the Units on Arca and the TSX, (viv) the cost of printing certificates representing the Units, (vi) the costs and expenses of the Trust and the Manager relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Trust or the Manager, travel and lodging expenses of the representatives and officers of the Trust and the Manager and any such consultants, and the cost of any aircraft chartered in connection with the road show, (vii) the document production charges and expenses associated with printing this Agreement, and (viii) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section; provided that the Trust shall pay all expenses relating to: (1) the fees, disbursements and expenses of the Trust’s accountants with respect to any audit of the Trust; (2) all stock exchange filing and listing fees, in connection with the listing of the Units on the Arca and the TSX, (3) all printing costs associated with the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust in connection with the offer and sale of the Units and amendments and supplements to any of the foregoing, (4) any regulatory filing fees in connection with the registration, qualification and delivery of the Units under the Securities Act, state securities laws and Canadian Securities Laws and in connection with the Blue Sky or Legal Investment memorandum, (5) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (6) the costs and charges of any transfer agent, registrar, custodian or depositary and (7) the costs and expenses relating to printing of marketing materials relating to any investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units; and (B) if the transactions contemplated by this Agreement are consummated, that the Underwriters shall reimburse the Manager for all fees and expenses incurred by the Manager in connection with the transactions contemplated by this Agreement, in an aggregate amount not to exceed [·]. It is understood that, except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay (x) their travel expenses relating to any investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units and (y) fees and disbursements of their counsel.
(kl) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(l) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Silver Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC Incorporated (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Supplemental Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Supplemental Prospectus given forthwith after the applicable Preliminary Receipt or the Final ProspectusReceipt, as applicable, has been issued. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Supplemental Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the ProspectusesProspectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule and file with the Canadian Securities Commissions any prospectus or amendment or supplement thereto in accordance with the requirements of Canadian Securities Laws, including NP 44-103.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) Prospectus so that the statements in the Prospectuses Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the ProspectusesProspectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) To prepare and file with the OSC and the other Canadian Securities Commissions promptly after the execution and delivery of this Agreement, a supplemented PREP prospectus in the English and French languages in compliance in all respects with NI 41-101 and NI 44-103 (the “Canadian Supplemental Prospectus”), in a form reasonably satisfactory to the Underwriters, such filing to occur not later than 11:00 p.m. (Toronto time) on [·], 2010.
(A) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the ProspectusesProspectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws and Canadian Securities Laws as provided in Section Sections 6(h), ) and 6(j) hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form F-1 (or such other form that may be used by the Trust or the Manager to register the Trust Units under the Exchange Act) relating to the Trust Units and all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the costs and expenses of the Trust and the Manager relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Trust or the Manager, travel and lodging expenses of the representatives and officers of the Trust and the Manager and any such consultants, and the cost of any aircraft chartered in connection with the road show, (viii) the document production charges and expenses associated with printing this Agreement, and (viiiix) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section; and (B) if the transactions contemplated by this Agreement are consummated, that the Trust shall reimburse the Underwriters for all fees and expenses incurred by the Underwriters in connection with the transactions contemplated by this Agreement (including but not limited to the fees, disbursements and expenses of the Underwriters’ counsel), in an aggregate amount not to exceed $150,000.
(kl) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(lm) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not not, during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, Units or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, otherwise or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Gold Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC Incorporated (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the amended and restated Canadian Preliminary Prospectus preliminary base PREP prospectus (and each amendment thereto) and Canadian Final Supplemental Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Supplemental Prospectus given forthwith after the applicable Preliminary Receipt or the Final ProspectusReceipt, as applicable, has been issued. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Supplemental Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the ProspectusesProspectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule and file with the Canadian Securities Commissions any prospectus or amendment or supplement thereto in accordance with the requirements of Canadian Securities Laws, including NP 44-103.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) Prospectus so that the statements in the Prospectuses Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the ProspectusesProspectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) To prepare and file with the OSC and the other Canadian Securities Commissions promptly after the execution and delivery of this Agreement, a supplemented PREP prospectus in the English and French languages in compliance in all respects with NI 41-101 and NI 44-103 (the “Canadian Supplemental Prospectus”), in a form reasonably satisfactory to the Underwriters, such filing to occur not later than 11:00 p.m. (Toronto time) on [•], 2010.
(A) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the ProspectusesProspectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws and Canadian Securities Laws as provided in Section Sections 6(h), ) and 6(j) hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form F-1 (or such other form that may be used by the Trust or the Manager to register the Trust Units under the Exchange Act) relating to the Trust Units and all costs and expenses incident to listing the Units on Arca and the TSX, (vi) the cost of printing certificates representing the Units, (vii) the costs and expenses of the Trust and the Manager relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Trust or the Manager, travel and lodging expenses of the representatives and officers of the Trust and the Manager and any such consultants, and the cost of any aircraft chartered in connection with the road show, (viii) the document production charges and expenses associated with printing this Agreement, and (viiiix) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in
(B) If the transactions contemplated by this Agreement are consummated, that the Trust shall reimburse the Underwriters for all fees and expenses incurred by the Underwriters in connection with the transactions contemplated by this SectionAgreement (including but not limited to the fees, disbursements and expenses of the Underwriters’ counsel), in an aggregate amount not to exceed $250,000.
(kl) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(lm) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not not, during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, Units or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, otherwise or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Gold Trust)
Covenants of the Trust and the Manager. The Trust and the Manager, jointly and severally, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, 10 signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and RBC Dominion Securities Inc. (“RBC”) in New York City or as directed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or RBC, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectuses Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) To cause commercial copies of the Canadian Preliminary Prospectus (and each amendment thereto) and Canadian Final Supplemental Prospectus to be delivered to or as directed by the Underwriters without charge, in such numbers and in such cities as the Underwriters may reasonably request by oral instructions to the printer of such Canadian Preliminary Prospectus and Canadian Supplemental Prospectus given forthwith after the applicable Preliminary Receipt or the Final ProspectusReceipt, as applicable, has been issued. Such delivery shall be effected as soon as reasonably possible and, in any event, with respect to the Canadian Final Supplemental Prospectus not later than noon (Toronto time) on the business day next succeeding the date of this Agreement.
(c) To prepare the Canadian Final Prospectus and the Prospectus in a form approved by you and (i) to file the Canadian Final Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the execution and delivery of this Agreement; before Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the ProspectusesProspectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule and file with the Canadian Securities Commissions any prospectus or amendment or supplement thereto in accordance with the requirements of Canadian Securities Laws, including NP 44-103.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Trust and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Trust being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters either of the Prospectuses Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Trust) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) Prospectus so that the statements in the Prospectuses Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the ProspectusesProspectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Trust’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) To prepare and file with the OSC and the other Canadian Securities Commissions promptly after the execution and delivery of this Agreement, a supplemented PREP prospectus in the English and French languages in compliance in all respects with NI 41-101 and NI 44-103 (the “Canadian Supplemental Prospectus”), in a form reasonably satisfactory to the Underwriters, such filing to occur not later than 11:00 p.m. (Toronto time) on [·], 2012.
(A) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, that the Trust Manager shall pay or cause to be paid all expenses incident to the performance of the Trust’s and the Manager’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Trust’s and the Manager’s counsel and the Trust’s accountants in connection with the registration, qualification and delivery of the Units under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Preliminary Prospectuses, the Time of Sale Prospectus, the ProspectusesProspectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specifiedspecified and the fees, disbursements and expenses of the Trust’s accountants, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws and Canadian Securities Laws as provided in Section Sections 6(h), ) and 6(j) hereof, including any filing fees, in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred expenses in connection with the review preparation and qualification filing of the offering of the Units registration statement on Form F-1 (or such other form that may be used by the Financial Industry Regulatory Authority, (vTrust or the Manager to register the Trust Units under the Exchange Act) relating to the Trust Units and all costs and expenses incident to listing the Units on Arca and the TSX, (viv) the cost of printing certificates representing the Units, (vi) the costs and expenses of the Trust and the Manager relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Trust or the Manager, travel and lodging expenses of the representatives and officers of the Trust and the Manager and any such consultants, and the cost of any aircraft chartered in connection with the road show, (vii) the document production charges and expenses associated with printing this Agreement, and (viii) all other costs and expenses incident to the performance of the obligations of the Trust and the Manager hereunder for which provision is not otherwise made in this Section; provided that the Trust shall pay all expenses relating to: (1) the fees, disbursements and expenses of the Trust’s accountants with respect to any audit of the Trust; (2) all stock exchange filing and listing fees, in connection with the listing of the Units on the Arca and the TSX, (3) all printing costs associated with the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Trust in connection with the offer and sale of the Units and amendments and supplements to any of the foregoing, (4) any regulatory filing fees in connection with the registration, qualification and delivery of the Units under the Securities Act, state securities laws and Canadian Securities Laws and in connection with the Blue Sky or Legal Investment memorandum, (5) all filing fees incurred in connection with the review and qualification of the offering of the Units by the Financial Industry Regulatory Authority, (6) the costs and charges of any transfer agent, registrar, custodian or depositary and (7) the costs and expenses relating to printing of marketing materials relating to any investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units; and (B) if the transactions contemplated by this Agreement are consummated, the Underwriters shall reimburse the Manager in an amount equal to the least of: (1) the fees and expenses of the Trust and the Manager actually paid by the Manager in connection with the transactions contemplated by this Agreement, (2) 0.2% of the gross proceeds to the Trust in respect of the Firm Units and the Additional Units, if any, purchased pursuant to this Agreement and (3) $750,000. It is understood that, except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay (x) their travel expenses relating to any investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units and (y) fees and disbursements of their counsel.
(kl) To use its best efforts to have the Units accepted for listing on Arca and the TSX and maintain the listing of the Units on Arca and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(lm) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and RBC on behalf of the Underwriters, that the Trust will not not, during the period ending 90 days after the Closing Date, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Units or any securities convertible into or exercisable or exchangeable for Units, Units or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Units or such other securities, in cash or otherwise, otherwise or (3) file any registration statement with the Commission or prospectus with any regulatory authority in Canada relating to the offering of any Units or any securities convertible into or exercisable or exchangeable for Units.
Appears in 1 contract
Sources: Underwriting Agreement (Sprott Physical Platinum & Palladium Trust)