Offering Terms. 3.1 The Units will be offered for sale by the Agent to Purchasers resident in the Qualifying Jurisdictions. 3.2 The sale of the Units to Purchasers is to be effected by the Agent in a manner exempt from any prospectus or offering memorandum filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities and, for offers and sales in the United States, in accordance with the requirements of the exemption from registration from US federal and state securities laws available under Rule 506 of Regulation D. The Agent will notify the Corporation with respect to the identity and jurisdiction of residence of each Purchaser (and for offers in the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Units to the Purchasers and offers of the Units to US Purchasers. 3.3 The Agent will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed form of Accredited Investor Certificate or US Subscription Agreement and Accredited Investor Certificate, as applicable, each in the form attached as a Schedule to the Subscription Agreement. 3.4 If, in the opinion of the Agent, it is necessary, the Agent will form, manage and participate in a group of sub-agents to offer and sell the Units as provided for hereunder. Each sub-agent shall be appropriately registered under the Applicable Securities Laws so as to permit it to lawfully offer and sell the Units in such jurisdictions in which it offers and sells the Units. In the event that a selling group is formed, the Agent will: (a) manage the selling group as and to the extent customary in the securities industry in Canada; and (b) require each member of the selling group to offer and sell the Units on the terms set forth in this Agreement. 3.5 Each Unit will consist of one Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchase one common share of the Corporation (a “Warrant Share”) for a period of two years from the date of issue of the Warrant at a price of $0.75 per Warrant Share. 3.6 The Corporation covenants to satisfy as expeditiously as possible each of the conditions of the Exchange (the “Exchange Conditions”) required to be satisfied prior to the Exchange’s acceptance of the Corporation’s notice of the Private Placement. 3.7 The terms and conditions of the Warrants, the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants and the attributes and characteristics of the Warrants, the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants will be substantially as described in this Agreement subject to the changes, if any, that the Corporation and the Agent (on its behalf and, with respect to the Warrants, on behalf of the Purchasers) may agree to. 3.8 The Private Placement has not been and will not be advertised in any way. 3.9 No selling or promotional expenses will be paid or incurred in connection with the Private Placement, except for professional services or for services performed by a registered dealer. 3.10 The Agent acknowledges that the Securities have not been, and will not be, registered under the 1933 Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S or, for offers in the United States, by the Agent through the US Affiliate, and sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “US Private Placement”). Accordingly, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of section of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of Closing and the Closing Date, which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement: (a) it has offered and sold, and will offer and sell, Securities outside the United States only in accordance with Rule 903 of Regulation S and accordingly, neither the Agent, its affiliates nor any persons acting on their behalf, has made or will make: (i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Securities to any person in the United States or to, or for the account or benefit of, a US Person; (ii) any sale of Securities to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States and not a US Person, or the Agent, or such affiliate or person acting on behalf of the Agent, reasonably believed that such Purchaser was outside the United States and not a US Person; or (iii) any Directed Selling Efforts in the United States with respect to the Securities; (b) it has offered and sold, and will offer and sell, Securities to persons in the United States or to, or for the account or benefit of, US Persons, only in the following manner: (i) the Agent has and will offer and sell the Units in the United States only through its US Affiliate (if applicable), which was and is on the dates of such offers and sales a duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc.; (ii) immediately prior to soliciting offerees, the Agent has or will have reasonable grounds to believe and did or will believe that each US Offeree and each US Purchaser was and is an US Accredited Investor; (iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agent or its affiliates, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Units in the United States; (iv) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made in the United States or to US Persons was or will be made only to US accredited investors by the Agent through its US Affiliate (if applicable), and in transactions that are exempt from registration under the 1933 Act and any applicable state securities laws and in accordance with any applicable US federal or state laws or regulations governing the registration and conduct of securities brokers and dealers; (v) all US Offerees and US Purchasers shall be informed that the Securities have not been and will not be registered under the 1933 Act and the Securities are being offered and sold to such purchasers in reliance on an exemption from the registration requirements of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will not be registered under the US Securities Act of 1933, as amended (the “1933 Act”) and are being offered and sold within the United States only to accredited investors (as defined in Rule 501(a) of Regulation D under the 1933 Act). Prospective purchasers of the Securities are hereby notified that the seller of the Securities is relying upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.”; (vi) as a condition of the purchase of the Units, each US Purchaser will be required to execute and deliver to the Agent the US Accredited Investor Certificate to the foregoing effect, among other terms and conditions; (vii) neither the Agent, its affiliates or any person acting on its behalf (other than the Corporation, its affiliates and any person acting on their behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities; and (c) the Agent and its US Affiliate make the representations and warranties set out in Exhibit “1” – Agent’s Certificate.
Appears in 1 contract
Sources: Agency Agreement (Crosshair Exploration & Mining Corp)
Offering Terms. 3.1 The Units Shares will be offered for sale by the Agent Agents, as agents on behalf of the Corporation, to Purchasers resident in the Qualifying Jurisdictions.
3.2 The sale of the Units Shares to Purchasers is to be effected by the Agent Agents in a manner exempt from any prospectus or offering memorandum filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities and, for offers and sales in the United States, in accordance with the requirements of the exemption from registration from US federal and state securities laws available under Rule 506 of Regulation D. Authorities. The Agent Agents will notify the Corporation with respect to the identity and jurisdiction of residence of each Purchaser (and for offers in the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure confirm compliance with all Applicable Securities Laws in connection with the sale of the Units Shares to the Purchasers and offers of the Units to US Purchasers.
3.3 The Agent Agents will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed form of Accredited Investor Certificate or US Subscription Agreement and Accredited Investor Certificatequestionnaire, as applicable, and a properly completed and duly executed TSX Private Placement Questionnaire and Undertaking, each in the form attached as a Schedule to the Subscription Agreement, together with any additional documentation as may be requested by the Exchange.
3.4 If, in the opinion of the AgentAgents, it is necessary, the Agent Agents will form, manage and participate in a group of sub-agents to offer and sell the Units Shares as provided for hereunder. Each sub-agent shall be appropriately registered under the Applicable Securities Laws so as to permit it to lawfully offer and sell the Units Shares in such jurisdictions in which it offers and sells the UnitsShares. In the event that a selling group is formed, the Agent Agents will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units Shares on the terms set forth in this Agreement.
3.5 Each Unit will consist of one Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchase one common share of the Corporation (a “Warrant Share”) for a period of two years from the date of issue of the Warrant at a price of $0.75 per Warrant Share.
3.6 The Corporation covenants to use its commercial best efforts to satisfy as expeditiously as possible possible, each of the conditions of the Exchange (the “"Exchange Conditions”") required to be satisfied prior to the Exchange’s 's acceptance of the Corporation’s 's notice of the Private Placement.
3.7 3.6 The terms and conditions of the Warrants, the Fee Warrants, the Agent’s Compensation Options and the Agent’s Option Warrants and the attributes and characteristics of the Warrants, the Fee Warrants, the Agent’s Compensation Options and the Agent’s Option Warrants will be substantially as described in this Agreement subject to the changes, if any, that the Corporation and the Agent Agents (each on its behalf and, with respect to the Warrants, on behalf of the Purchasersbehalf) may agree to.
3.8 3.7 The Corporation and each of the Agents confirms that the Private Placement has not been been, and agrees that it will not be be, advertised in any way.
3.9 3.8 No selling or promotional expenses will be paid or incurred in connection with the Private Placement, except for professional services or for services performed by a registered dealer.
3.10 3.9 The Agent acknowledges Agents acknowledge that the Securities Shares, the Commission Shares, the Corporate Finance Fee Shares, the Compensation Options and the Compensation Option Shares have not been, and will not be, registered under the 1933 Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S or, for offers in the United States, by the Agent through the US Affiliate, and sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “US Private Placement”). Accordingly, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of section of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of Closing and the Closing Date, which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement:
(a) it has offered and sold, and will offer and sell, Securities outside the United States only in accordance with Rule 903 of Regulation S and accordingly, neither the Agent, its affiliates nor any persons acting on their behalf, has made or will make:
(i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Securities to any person in the United States or to, or for the account or benefit of, a US Person;
(ii) any sale of Securities to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States and not a US Person, or the Agent, or such affiliate or person acting on behalf of the Agent, reasonably believed that such Purchaser was outside the United States and not a US Person; or
(iii) any Directed Selling Efforts in the United States with respect to the Securities;
(b) it has offered and sold, and will offer and sell, Securities to persons in the United States or to, or for the account or benefit of, US Persons, only in the following manner:
(i) the Agent has and will offer and sell the Units in the United States only through its US Affiliate (if applicable), which was and is on the dates of such offers and sales a duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting offerees, the Agent has or will have reasonable grounds to believe and did or will believe that each US Offeree and each US Purchaser was and is an US Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agent or its affiliates, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Units in the United States;
(iv) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made in the United States or to US Persons was or will be made only to US accredited investors by the Agent through its US Affiliate (if applicable), and in transactions that are exempt from registration under the 1933 Act and any applicable state securities laws and in accordance with any applicable US federal or state laws or regulations governing the registration and conduct of securities brokers and dealers;
(v) all US Offerees and US Purchasers shall be informed that the Securities have not been and will not be registered under the 1933 Act and the Securities are being offered and sold to such purchasers in reliance on an exemption from the registration requirements of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will not be registered under the US Securities Act of 1933, as amended (the “1933 Act”) and are being offered and sold within the United States only to accredited investors (as defined in Rule 501(a) of Regulation D under the 1933 Act). Prospective purchasers of the Securities are hereby notified that the seller of the Securities is relying upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.”;
(vi) as a condition of the purchase of the Units, each US Purchaser will be required to execute and deliver to the Agent the US Accredited Investor Certificate to the foregoing effect, among other terms and conditions;
(vii) neither the Agent, its affiliates or any person acting on its behalf (other than the Corporation, its affiliates and any person acting on their behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities; and
(c) the Agent and its US Affiliate make the representations and warranties set out in Exhibit “1” – Agent’s Certificate.S.
Appears in 1 contract
Offering Terms. 3.1 The Units will be offered for sale by the Agent Agents to Purchasers resident in the Qualifying Jurisdictions.
3.2 The sale of the Units to Purchasers is to be effected by the Agent Agents or the U.S. Affiliates (as applicable) in a manner exempt from any prospectus or offering memorandum filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities and, and for offers and sales of Units in the United States, in accordance with the requirements of the an exemption from registration from US under United States federal and state securities laws available under Rule 506 of Regulation D. laws. The Agent Agents will notify the Corporation with respect to the identity and jurisdiction of residence of each Purchaser (and for offers in the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Units to the Purchasers and offers of the Units to US Purchasers.
3.3 The Agent Agents will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and Agreement, a properly completed and duly executed form of Accredited Investor Certificate or US Subscription Agreement and U.S. Accredited Investor Certificate, Certificate (as applicable), each in together with any additional documentation as may be requested by the form attached as a Schedule Exchanges or by any Regulatory Authority pursuant to the Subscription AgreementApplicable Securities Laws.
3.4 If, in the opinion of the AgentAgents, it is necessary, the Agent Agents will form, manage and participate in a group of sub-agents to offer and sell the Units as provided for hereunder. Each sub-agent shall be appropriately registered under the Applicable Securities Laws so as to permit it to lawfully offer and sell the Units in such jurisdictions in which it offers and sells the Units. In the event that a selling group is formed, the Agent Agents will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units on the terms set forth in this Agreement.
3.5 Each Unit will consist of one Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchase one common share of the Corporation (a “Warrant Share”) for a period of two years from the date of issue of the Warrant at a price of $0.75 per Warrant Share.
3.6 The Corporation covenants to use its best efforts to satisfy as expeditiously as possible possible, each of the conditions of the Exchange Exchanges (the “Exchange Conditions”) required to be satisfied prior to the Exchange’s Exchanges’ acceptance of the Corporation’s notice of the Private Placement.
3.7 3.6 The terms and terms, conditions of the Warrants, the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants and the attributes and characteristics of the Warrants, the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants will be substantially as described in this Agreement subject to the changes, if any, that to which the Corporation and the Agent (on its behalf andAgents may agree; provided that, with respect to the Warrants, on behalf changes of a material nature are subject to the prior written consent of the Purchasers) may agree to, such consent not to be unreasonably withheld.
3.8 3.7 The Private Placement has not been and will not be advertised in any way.
3.9 3.8 No selling or promotional expenses will be paid or incurred in connection with the Private Placement, except for professional services or for services performed by a registered dealer, as provided for herein.
3.10 3.9 The Agent acknowledges Agents acknowledge that the Securities have not been, and will not be, been registered under the 1933 Act or the applicable state securities laws of any state of the United States and may not be offered or sold except outside the United States to non-U.S. Persons in accordance with Regulation S or, for offers in the United StatesStates or to U.S. Persons, by the Agent Agents through the US AffiliateU.S. Affiliates, and for sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “US U.S. Private Placement”). Accordingly, the Agent representsAgents represent, warrants warrant and covenants covenant to the Corporation, without limiting the generality of section 3.2 of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of Closing and the Closing Date, (which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that:
(a) except for offers and sales of Units that comply with paragraph (b) below, it has offered and sold, and will offer and sell, Securities the Units only outside the United States only to non-U.S. Persons in accordance with Rule 903 of Regulation S and accordingly, neither the AgentAgents, its affiliates the U.S. Affiliates, nor any persons acting on their behalf, has made or will makemake in connection therewith:
(i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Securities Units to any person in the United States or to, or for the account or benefit of, a US PersonU.S. Offeree;
(ii) any sale of Securities Units to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States and not a US PersonStates, or the AgentAgents, the U.S. Affiliates or such affiliate or person any persons acting on behalf of the Agenttheir behalf, reasonably believed that such Purchaser was outside the United States and not a US PersonStates; or
(iii) any Directed Selling Efforts in the United States with respect to any of the Securities;.
(b) it has offered and sold, and will only offer and sell, Securities sell Units to persons in the United States or to, or for the account or benefit of, US Persons, only U.S. Offerees in the following manner:
(i) the Agent has Agents have offered and sold, and will offer and sell the Units in the United States only through its US Affiliate (if applicable)the U.S. Affiliates, which was were and is are on the dates of such offers and sales a duly registered broker brokers or dealer dealers pursuant to Section section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was were and is are a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting offereesU.S. Offerees and making sales of the Units, each of the Agents, the Agent U.S. Affiliates, their affiliates and any person acting on their behalf has or will have reasonable grounds to believe and did or will believe that each US U.S. Offeree and each US Purchaser U.S. Purchaser, as applicable, was and is an US a U.S. Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) or any manner involving a public offering within the meaning of section 4(2) of the 1933 Act has been or will be used by the Agent Agents, the U.S. Affiliates, their affiliates or anyone acting on their behalf or its affiliates, including including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Units in the United Statesto U.S. Offerees;
(iv) any offer, sale or solicitation of an offer to buy Securities Units that has been made or will be made in the United States or to US Persons U.S. Offerees, was or will be made only to US accredited investors U.S. Accredited Investors by the Agent Agents through its US Affiliate (if applicable)their respective U.S. Affiliates, and in transactions that are exempt from registration pursuant to Rule 506 of Regulation D under the 1933 Act and under any applicable state securities laws and in accordance with any applicable US U.S. federal or and state laws or and regulations governing the registration and conduct of securities brokers and dealers;
(v) all US U.S. Offerees and US U.S. Purchasers shall be informed that the Securities have not been and will not be registered under the 1933 Act or applicable securities laws of any state and the Securities are being offered and sold to such purchasers persons in reliance on an exemption from the registration requirements of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will not be registered under the US Securities Act of 1933, as amended (the “1933 Act”) and are being offered and sold within the United States only to accredited investors (as defined in Rule 501(a) of Regulation D under the 1933 Act). Prospective purchasers of the Securities are hereby notified that the seller of the Securities is relying upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.”any state securities laws;
(vi) as a condition of the purchase of the Units, each US U.S. Purchaser will be required to execute and deliver to the Agent Agents a Subscription Agreement, including the US U.S. Accredited Investor Certificate to the foregoing effectCertificate, among other terms and conditions;
(vii) at least 24 hours in advance of the Closing, the Agents will deliver to the Corporation a list of the U.S. Purchasers, together with the materials described in the foregoing paragraph;
(viii) neither the AgentAgents, its their affiliates or nor any person acting on its their behalf (other than the Corporation, its affiliates and any person acting on their behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities;
(ix) it has not entered and will not enter into any contractual arrangement with respect to the distribution of the Securities, except with their affiliates, any selling group members, or with the prior written consent of the Corporation. It shall require each selling group member to agree in writing, to comply with, and shall use their best efforts to ensure that each selling group member complies with, the same provisions of this section 3.9(b) as apply to the Agents as if such provisions applied to such selling group member;
(x) all offers of the Units in the United States or to U.S. Offerees have been and will be made through the U.S. Affiliates and all sales of the Units in the United States or to U.S. Purchasers will be made by the Corporation to Accredited Investors designated by the U.S. Affiliates or by the Agents through the U.S. Affiliates;
(xi) the Agents shall give the Corporation reasonable notice of the U.S. jurisdictions in which it proposes to offer and sell the Units, so as to assist the Corporation in satisfying its obligations under this Agreement and to permit the Corporation to timely submit any and all filings required of the 1933 Act and applicable state securities laws; and
(xii) the representations and warranties and covenants of the Agents contained in this section 3.9(b) shall be true and correct as of the Closing, with the same force and effect as if then made by the Agents.
(c) at the Agent Closing, the Agents and its US Affiliate the U.S. Affiliates will execute and deliver to the Corporation, and will make the representations and warranties set out in Exhibit “1” – Agent’s Agents’ Certificate.
Appears in 1 contract
Offering Terms. 3.1 The Units Offered Securities will be offered for sale by the Agent to Purchasers resident in the Qualifying Jurisdictions.
3.2 The sale of the Units Offered Securities to Purchasers is to be effected by the Agent in a manner exempt from any prospectus or offering memorandum filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities and, for offers and sales in the United States, in accordance with the requirements of the exemption from registration from US federal and state securities laws available under Rule 506 of Regulation D. The Agent will notify the Corporation with respect to the identity and jurisdiction of residence of each Purchaser (and for offers in the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Units Offered Securities to the Purchasers and offers of the Units Offered Securities to US Purchasers.
3.3 The Agent will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed form of Accredited Investor Certificate or US Subscription Agreement and Accredited Investor Certificate, as applicable, each in the form attached as a Schedule to the Subscription Agreement.
3.4 If, in the opinion of the Agent, it is necessary, the Agent will form, manage and participate in a group of sub-agents to offer and sell the Units Offered Securities as provided for hereunder. Each sub-agent shall be appropriately registered under the Applicable Securities Laws so as to permit it to lawfully offer and sell the Units Offered Securities in such jurisdictions in which it offers and sells the UnitsOffered Securities. In the event that a selling group is formed, the Agent will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units Offered Securities on the terms set forth in this Agreement.
3.5 Each FT Unit will consist of one FT Share and one-half of one FT Warrant. Each whole FT Warrant will entitle the holder to purchase one FT Warrant Share for a period of two years from the Closing Date at a price of $1.75 per FT Warrant Share. The FT Shares will have the attributes described in the form of Subscription Agreement for FT Units and the Agent shall have the benefit of the representations, warranties and covenants with respect to the FT Shares made by the Corporation in such form of Subscription Agreement as if such representation, warranties and covenants were contained herein.
3.6 Each Common Share Unit will consist of one Common Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchase purchaser one common share of the Corporation (a “Warrant Share”) Share for a period of two years from the date of issue of the Warrant Closing Date at a price of $0.75 1.25 per Warrant Share.
3.6 3.7 The Corporation covenants to satisfy as expeditiously as possible each of the conditions of the Exchange (the “Exchange Conditions”) required to be satisfied prior to the Exchange’s acceptance of the Corporation’s notice of the Private Placement.
3.7 3.8 The terms and conditions of the Warrants, the Fee FT Warrants, the Agent’s Options Compensation Options, and the Agent’s Option Fee Warrants and the attributes and characteristics of the Warrants, the Fee FT Warrants, the Agent’s Compensation Options and the Agent’s Option Fee Warrants will be substantially as described in this Agreement subject to the changes, if any, that the Corporation and the Agent (on its behalf and, with respect to the Warrants and FT Warrants, on behalf of the Purchasers) may agree to.
3.8 3.9 The Private Placement has not been and will not be advertised in any way.
3.9 3.10 No selling or promotional expenses will be paid or incurred in connection with the Private Placement, except for professional services or for services performed by a registered dealer.
3.10 3.11 The Agent acknowledges that the Securities have not been, and will not be, registered under the 1933 Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S or, for offers in the United States, by the Agent through the US Affiliate, and sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “US Private Placement”). Accordingly, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of section of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of Closing and the Closing Date, which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement:
(a) it has offered and sold, and will offer and sell, Securities outside the United States only in accordance with Rule 903 of Regulation S and accordingly, neither the Agent, its affiliates nor any persons acting on their behalf, has made or will make:
(i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Securities to any person in the United States or to, or for the account or benefit of, a US Person;
(ii) any sale of Securities to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States and not a US Person, or the Agent, or such affiliate or person acting on behalf of the Agent, reasonably believed that such Purchaser was outside the United States and not a US Person; or
(iii) any Directed Selling Efforts in the United States with respect to the Securities;
(b) it has offered and sold, and will offer and sell, Securities to persons in the United States or to, or for the account or benefit of, US Persons, only in the following manner:
(i) the Agent has and will offer and sell the Units Securities in the United States only through its US Affiliate (if applicable), which was and is on the dates of such offers and sales a duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting offerees, the Agent has or will have reasonable grounds to believe and did or will believe that each US Offeree and each US Purchaser was and is an US Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agent or its affiliates, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Units Offered Securities in the United States;
(iv) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made in the United States or to US Persons was or will be made only to US accredited investors by the Agent through its US Affiliate (if applicable), and in transactions that are exempt from registration under the 1933 Act and any applicable state securities laws and in accordance with any applicable US federal or state laws or regulations governing the registration and conduct of securities brokers and dealers;
(v) all US Offerees and US Purchasers shall be informed that the Securities have not been and will not be registered under the 1933 Act and the Securities are being offered and sold to such purchasers in reliance on an exemption from the registration requirements of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will not be registered under the US Securities Act of 1933, as amended (the “1933 Act”) and are being offered and sold within the United States only to accredited investors (as defined in Rule 501(a) of Regulation D under the 1933 Act). Prospective purchasers of the Securities are hereby notified that the seller of the Securities is relying upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.”;
(vi) as a condition of the purchase of the UnitsSecurities, each US Purchaser will be required to execute and deliver to the Agent the US Accredited Investor Certificate to the foregoing effect, among other terms and conditions;
(vii) neither the Agent, its affiliates or any person acting on its behalf (other than the Corporation, its affiliates and any person acting on their behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities; and
(c) the Agent and its US Affiliate make the representations and warranties set out in Exhibit “1” – Agent’s Certificate.
Appears in 1 contract
Sources: Agency Agreement (Crosshair Exploration & Mining Corp)
Offering Terms. 3.1 The Units Shares will be offered for sale by the Agent Agent, as agent on behalf of the Corporation, to Purchasers resident in the Qualifying Jurisdictions.
3.2 The sale of the Units Shares to Purchasers is to be effected by the Agent in a manner exempt from any prospectus or offering memorandum filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities and, for offers and sales in the United States, in accordance with the requirements of the exemption from registration from US federal and state securities laws available under Rule 506 of Regulation D. Authorities. The Agent will notify the Corporation with respect to the identity and jurisdiction of residence of each Purchaser (and for offers in the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure confirm compliance with all Applicable Securities Laws in connection with the sale of the Units Shares to the Purchasers and offers of the Units to US Purchasers.
3.3 The Agent will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed form of Accredited Investor Certificate or US Subscription Agreement and Accredited Investor Certificatequestionnaire, as applicable, each in the form attached as a Schedule to the Subscription Agreement, together with any additional documentation as may be requested by the Exchange.
3.4 If, in the opinion of the Agent, it is necessary, the Agent will form, manage and participate in a group of sub-agents to offer and sell the Units Shares as provided for hereunder. Each sub-agent shall be appropriately registered under the Applicable Securities Laws so as to permit it to lawfully offer and sell the Units Shares in such jurisdictions in which it offers and sells the UnitsShares. In the event that a selling group is formed, the Agent will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units Shares on the terms set forth in this Agreement.
3.5 Each Unit will consist of one Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchase one common share of the Corporation (a “Warrant Share”) for a period of two years from the date of issue of the Warrant at a price of $0.75 per Warrant Share.
3.6 The Corporation covenants to use its commercial best efforts to satisfy as expeditiously as possible possible, each of the conditions of the Exchange (the “"Exchange Conditions”") required to be satisfied prior to the Exchange’s 's acceptance of the Corporation’s 's notice of the Private Placement.
3.7 3.6 The terms and conditions of the Warrants, the Fee Warrants, the Agent’s 's Options and the Agent’s Option Warrants and the attributes and characteristics of the Warrants, the Fee Warrants, the Agent’s 's Options and the Agent’s Option Warrants will be substantially as described in this Agreement subject to the changes, if any, that the Corporation and the Agent (on its behalf and, with respect to the Warrants, on behalf of the Purchasers) may agree to.
3.8 3.7 The Corporation and the Agent confirm that the Private Placement has not been been, and agree that it will not be be, advertised in any way.
3.9 3.8 No selling or promotional expenses will be paid or incurred in connection with the Private Placement, except for professional services or for services performed by a registered dealer.
3.10 3.9 The Agent acknowledges that the Securities Shares, the Commission Shares, the Agent's Options and the Agent's Option Shares have not been, and will not be, registered under the 1933 Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S or, for offers in the United States, by the Agent through the US Affiliate, and sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “US Private Placement”). Accordingly, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of section of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of Closing and the Closing Date, which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement:
(a) it has offered and sold, and will offer and sell, Securities outside the United States only in accordance with Rule 903 of Regulation S and accordingly, neither the Agent, its affiliates nor any persons acting on their behalf, has made or will make:
(i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Securities to any person in the United States or to, or for the account or benefit of, a US Person;
(ii) any sale of Securities to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States and not a US Person, or the Agent, or such affiliate or person acting on behalf of the Agent, reasonably believed that such Purchaser was outside the United States and not a US Person; or
(iii) any Directed Selling Efforts in the United States with respect to the Securities;
(b) it has offered and sold, and will offer and sell, Securities to persons in the United States or to, or for the account or benefit of, US Persons, only in the following manner:
(i) the Agent has and will offer and sell the Units in the United States only through its US Affiliate (if applicable), which was and is on the dates of such offers and sales a duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting offerees, the Agent has or will have reasonable grounds to believe and did or will believe that each US Offeree and each US Purchaser was and is an US Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agent or its affiliates, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Units in the United States;
(iv) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made in the United States or to US Persons was or will be made only to US accredited investors by the Agent through its US Affiliate (if applicable), and in transactions that are exempt from registration under the 1933 Act and any applicable state securities laws and in accordance with any applicable US federal or state laws or regulations governing the registration and conduct of securities brokers and dealers;
(v) all US Offerees and US Purchasers shall be informed that the Securities have not been and will not be registered under the 1933 Act and the Securities are being offered and sold to such purchasers in reliance on an exemption from the registration requirements of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will not be registered under the US Securities Act of 1933, as amended (the “1933 Act”) and are being offered and sold within the United States only to accredited investors (as defined in Rule 501(a) of Regulation D under the 1933 Act). Prospective purchasers of the Securities are hereby notified that the seller of the Securities is relying upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.”;
(vi) as a condition of the purchase of the Units, each US Purchaser will be required to execute and deliver to the Agent the US Accredited Investor Certificate to the foregoing effect, among other terms and conditions;
(vii) neither the Agent, its affiliates or any person acting on its behalf (other than the Corporation, its affiliates and any person acting on their behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities; and
(c) the Agent and its US Affiliate make the representations and warranties set out in Exhibit “1” – Agent’s Certificate.S.
Appears in 1 contract
Offering Terms. 3.1 2.1 The Units will be offered for sale by the Agent to Purchasers resident in the Qualifying JurisdictionsJurisdictions on a private placement basis and only at the Issue Price as contemplated herein.
3.2 2.2 The Agent will comply with applicable laws, regulations and Exchange rules in connection with the offer to sell, or distribution of, the Units. The Agent will not, directly or indirectly, solicit offers to purchase or sell the Units so as to require the filing of a prospectus, offering memorandum or similar disclosure document with respect to the Units, the Common Shares, the Warrants, the Warrant Shares, the Agent's Compensation Options or the Agent's Compensation Shares under the laws of any of the Qualifying Jurisdictions. The Agent will use its best efforts to cause similar undertakings to be contained in any agreement among any members of the banking, selling or other group formed for the distribution of the Units, the Common Shares and the Warrants, and will require any member of the banking, selling or other group formed for the distribution of the Units to comply with applicable laws, including securities laws and regulations of any Qualifying Jurisdiction and Exchange rules.
2.3 The sale of the Units to Purchasers is to be effected by the Agent in a manner exempt from any prospectus or prospectus, registration statement, offering memorandum or similar disclosure document filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities and, for offers and sales in the United States, in accordance with the requirements of the exemption from registration from US federal and state securities laws available under Rule 506 of Regulation D. Authorities. The Agent will notify the Corporation with respect to the identity identity, location and jurisdiction of residence of each Purchaser (and for offers in the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) a Qualifying Jurisdiction as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Units to the Purchasers and offers of Purchasers. The Corporation will have the Units to US Purchasersfinal decision on the prospective Purchaser list.
3.3 2.4 The Agent will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed form of Accredited Investor Certificate or US Subscription Agreement Selling Securityholder Notice and Questionnaire and Accredited Investor Certificate, Minimum Amount Investment Certificate, or Foreign Purchaser Certificate, together with any additional documentation as applicable, each in may be requested by the form attached as a Schedule to the Subscription AgreementExchange.
3.4 If, 2.5 If in the opinion of the Agent, Agent it is necessary, the Agent will form, manage and participate in a group of sub-sub agents to offer and sell the Units Units, the Common Shares and the Warrants as provided for hereunder. Each sub-sub agent shall be appropriately registered under the Applicable Securities Laws in their respective jurisdictions so as to permit it to lawfully offer and sell the Units Units, the Common Shares and the Warrants in such jurisdictions in which it offers and sells the Units, the Common Shares and the Warrants. In the event that a selling group is formed, the Agent will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units Units, the Common Shares and the Warrants on the terms set forth in this Agreement.
3.5 Each Unit will consist of one Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchase one common share of the Corporation (a “Warrant Share”) for a period of two years from the date of issue of the Warrant at a price of $0.75 per Warrant Share.
3.6 2.6 The Corporation covenants to use its reasonable best efforts to satisfy as expeditiously as possible possible, each of the conditions of the Exchange (the “Exchange Conditions”) Exchange, if any, required to be satisfied prior to the Exchange’s acceptance 's admission of the Corporation’s notice Common Shares for trading.
2.7 Neither the Corporation nor the Agent shall: (i) provide to prospective Purchasers any document or other material that would constitute an offering memorandum or future oriented financial information within the meaning of the Private Placement.
3.7 The terms Applicable Securities Laws of Canada or the United States or any state or territory thereof; or (ii) engage in any form of general solicitation or general advertising in connection with the offer and conditions sale of the WarrantsUnits, including causing the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants and the attributes and characteristics sale of the Warrants, the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants will be substantially as described in this Agreement subject Units to the changes, if any, that the Corporation and the Agent (on its behalf and, with respect to the Warrants, on behalf of the Purchasers) may agree to.
3.8 The Private Placement has not been and will not be advertised in any waynewspaper, magazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television, interne or telecommunications, including electronic display, or conduct any seminar or meeting relating to the offer and sale of the Units whose attendees have been invited by general solicitation or advertising.
3.9 2.8 No selling or promotional expenses will be paid for or incurred in connection with the Private PlacementOffering, except for professional services or for services performed by a registered dealer, as provided for herein.
3.10 2.9 The Corporation shall refuse to register any transfer of any Securities or Agent's Compensation Options (including the underlying securities) made prior to the expiration of the Distribution Compliance Period not made in accordance with the provisions of Regulation S, pursuant to registration under the U.S. Securities Act or pursuant to an available exemption from such registration.
2.10 The Agent acknowledges that the Securities Units, the Common Shares and Warrants comprising the Units and the Warrant Shares have not been, and will not be, been registered under the 1933 U.S. Securities Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S or, for offers in the United States, by the Agent through the US Affiliate, and sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “US Private Placement”)persons who are not U.S. Persons. AccordinglyThus, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of section Section 2.3 of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of Closing and the Closing DateClosing, (which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement:
(a) ), that it has offered and sold, and will offer and sell, Securities the Units or Common Shares and Warrants comprising the Units only outside the United States only in an Offshore Transaction in accordance with Rule 903 of Regulation S to persons who are not U.S. Persons or purchasing for the account or benefit of U.S. Persons. Accordingly, the Agent represents, warrants and accordinglycovenants to the Corporation, as of the date of this Agreement and as of the Time of Closing, (which representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that:
(a) neither the Agentit, its affiliates nor any persons person acting on their its behalf, has made or will makemake in connection therewith:
(i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Securities Units or Common Shares and Warrants comprising the Units to any person in the United States or to, or for the account or benefit of, a US U.S. Person;
(ii) any sale of Securities Units or Common Shares and Warrants comprising the Units to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States States, not a U.S. Person and not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a US PersonU.S. Person or a person in the United States, or the Agent, or such affiliate or person any persons acting on behalf of the Agenttheir behalf, reasonably believed that such Purchaser was outside the United States and not a US U.S. Person, and was not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States; or
(iii) any Directed Selling Efforts in the United States with respect to the Units, either while any of the Units are being offered for sale or during the Distribution Compliance Period; and
(b) any offering materials and documents (other than press releases) used in connection with offers and sales of the Securities prior to the expiration of the Distribution Compliance Period will include statements to the effect that the Securities have not been registered under the U.S. Securities Act and may not be offered or sold in the United States or to or for the account or benefit of, U.S. Persons unless registered under the U.S. Securities Act or an exemption from the registration requirements of the U.S. Securities Act is available and that hedging transactions involving the Securities may not be conducted unless in compliance with the U.S. Securities Act. Such statements will appear (i) on the cover or inside cover page of any material or memorandum; (ii) in the plan of distribution section of any prospectus or offering memorandum; and (iii) in any advertisement made or issued by the Corporation, any of its affiliates or any person acting on its or their behalf (other than the Agents, any member of the selling dealer group, their respective affiliates, or any person acting on any of their behalf, in respect of which no representation is made).
2.11 The Agent represents, warrants and covenants to the Corporation that:
(a) it will not offer or sell any of the Securities, the Agent's Compensation Options or the Agent's Compensation Shares, prior to the expiration of the Distribution Compliance Period, except in compliance with the provisions of Rule 903 or Rule 904 of Regulation S (if available), or pursuant to an effective registration statement under the U.S. Securities Act or an available exemption from the registration requirements of the U.S. Securities Act;
(b) it has offered shall send to each dealer or other person receiving a selling concession, fee or other remuneration to which it sells Securities during the Distribution Compliance Period a confirmation or other notice setting forth the restrictions on offers and sold, and will offer and sell, sales of the Securities to persons in the United States or toto or for the account or benefit of U.S. Persons in compliance with Rule 903(b)(3) of Regulation S;
(c) it will not engage in hedging transactions with respect to the Securities, the Agent's Compensation Options or the Agent's Compensation Shares prior to the expiration of the Distribution Compliance Period, unless in compliance with the U.S. Securities Act;
(d) it is not, and is not acquiring the Agent's Compensation Options on behalf of (as agent or otherwise), or for the account or benefit of, US Persons, only in the following manner:
(i) the Agent has and will offer and sell the Units in the United States only through its US Affiliate (if applicable), which was and is on the dates of such offers and sales a duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting offerees, the Agent has or will have reasonable grounds to believe and did or will believe that each US Offeree and each US Purchaser was and is an US Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agent or its affiliates, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Units in the United States;
(iv) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made person in the United States or to US Persons was or will be made only to US accredited investors by the Agent through its US Affiliate (if applicable)a U.S. Person, and was not in transactions that are exempt from registration under the 1933 Act and any applicable state securities laws and in accordance with any applicable US federal United States at the time it received the offer to acquire the Agent's Compensation Options or state laws or regulations governing at the registration and conduct of securities brokers and dealerstime it executed this Agreement;
(ve) all US Offerees it understands agrees that (i) the Agent's Compensation Options and US Purchasers shall be informed that the Securities Agent's Compensation Shares have not been and will not be registered under the 1933 U.S. Securities Act or the securities laws of any state of the United States, (ii) absent such registration or an exemption therefrom, the Agent's Compensation Options and the Securities are being offered and sold to such purchasers in reliance on an exemption from the registration requirements of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will Agent's Compensation Shares may not be registered under the US Securities Act of 1933sold, transferred or exercised, as amended applicable, and (iii) the “1933 Act”) certificates representing the Agent's Compensation Options and are being offered and sold within the United States only to accredited investors (as defined in Rule 501(a) of Regulation D under the 1933 Act). Prospective purchasers of the Securities are hereby notified that the seller of the Securities is relying any Agent's Compensation Shares issued upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.”;
(viexercise thereof will bear such U.S. restrictive legend(s) as a condition of the purchase of the Units, each US Purchaser will be required to execute and deliver to the Agent the US Accredited Investor Certificate to the foregoing effect, among other terms and conditions;
(vii) neither the Agent, its affiliates or any person acting on its behalf (other than the Corporation, its affiliates and any person acting on their behalfreasonably, as may deem appropriate or necessary in order to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection comply with the offer and sale of the Securitiesapplicable United States securities laws; and
(cf) the Agent and will not transfer beneficial ownership on its US Affiliate make records or on accounts held on its behalf on the representations and warranties records of any depository, or request that any depository transfer beneficial ownership of the Securities unless the Agent reasonably believes at the time of such transfer that the transferor has complied with the transfer restrictions imposed on the legends set out in Exhibit “1” – Agent’s Certificateforth on the certificates evidencing such Securities.
Appears in 1 contract
Offering Terms. 3.1 (a) The Offered Units will be offered for sale by the Agent Underwriters to Purchasers resident or located (as applicable) in the Qualifying Offering Jurisdictions.
3.2 (b) The sale of the Offered Units to Purchasers is to be effected by the Agent in a manner exempt from any prospectus or offering memorandum filing or delivery requirements of the Applicable Canadian Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities and, for offers and sales in the United States, in accordance with the requirements of the exemption from registration from US federal and state securities laws available under Rule 506 of Regulation D. any Governmental Authority. The Agent Underwriters will notify the Corporation with respect to the identity and jurisdiction of residence or location, as applicable, of each Purchaser (and for offers in the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Offered Units to the Purchasers and offers of the Units to US Purchasers.
3.3 (c) The Agent Underwriters will obtain from each Purchaser and deliver to the Corporation at least 48 hours in advance of Closing, a properly completed and duly executed Subscription Agreement and a properly completed and duly executed form of Accredited Investor Certificate or US Subscription Agreement and Accredited Investor CertificateAgreement, together with any additional documentation as applicable, each in may be reasonably requested by the form attached as a Schedule to the Subscription AgreementCorporation.
3.4 (d) If, in the opinion of the AgentLead Underwriter, it is necessary, the Agent Lead Underwriter will form, manage and participate in a group of sub-agents to offer and sell the Offered Units as provided for hereunder. Each sub-agent shall be appropriately registered under the Applicable Securities Laws so as to permit it to lawfully offer and sell the Offered Units in such jurisdictions in which it offers and sells the Offered Units. In the event that such a selling group is formed, the Agent Lead Underwriter will:
(ai) manage the selling group as and to the extent customary in the securities industry in Canada; and
(bii) require each member of the selling group to offer and sell the Offered Units on the terms set forth in this Agreement.
3.5 Each Unit will consist of one Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchase one common share of the Corporation (a “Warrant Share”e) for a period of two years from the date of issue of the Warrant at a price of $0.75 per Warrant Share.
3.6 The Corporation covenants to satisfy obtain all necessary regulatory approvals for the Offering.
(f) The Underwriters will only sell the Offered Units in accordance with Applicable Securities Laws and to persons who represent themselves as expeditiously being Persons purchasing as possible each principal or, in the case of subparagraph (i) below only, are deemed to be purchasing as principal under Applicable Securities Laws and who are:
(i) “accredited investors” as defined in NI 45-106 and who are not persons created or used solely to purchase or hold securities as “accredited investors” as defined in paragraph (m) of the conditions aforesaid definition of “accredited investor”;
(ii) “family, friends or business associate” investors pursuant to section 2.5, 2.6 or 2.6.1 of NI 45-106, as applicable; or
(iii) purchasing the Exchange (the “Exchange Conditions”) required to be satisfied prior Offered Units at an acquisition cost to the Exchange’s acceptance Purchaser of the Corporation’s notice of the Private Placement$150,000 and is not an individual.
3.7 (g) The terms and conditions of the Warrants, the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants and the attributes and characteristics of the Warrants, the Fee Warrants, the Agent’s Options and the Agent’s Option Warrants will be substantially as described in this Agreement subject to the changes, if any, that the Corporation and the Agent (on its behalf and, with respect to the Warrants, on behalf of the Purchasers) may agree to.
3.8 The Private Placement Offering has not been and will not be advertised in any way.
3.9 (h) No selling or promotional expenses will be paid or incurred in connection with the Private PlacementOffering, except for professional services or for services performed by a registered dealer, as provided for herein pursuant to Section 14.
3.10 (i) The Agent acknowledges Corporation and the Underwriters hereby acknowledge that the Securities Offered Units have not been, been and will not be, be registered under the 1933 U.S. Securities Act or applicable under any state securities laws in the United States and may not be offered or sold except outside the United States in accordance with Regulation S or, for offers in the United States, by the Agent through the US Affiliate, and sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “US Private Placement”). Accordingly, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of section of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of Closing and the Closing Date, which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement:
(a) it has offered and sold, and will offer and sell, Securities outside the United States only in accordance with Rule 903 of Regulation S and accordingly, neither the Agent, its affiliates nor any persons acting on their behalf, has made or will make:
(i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Securities to any person in the United States or to, or for the account or benefit of, a US Person;
(ii) any sale of Securities to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States and not a US Person, or the Agent, or such affiliate or person acting on behalf of the Agent, reasonably believed that such Purchaser was outside the United States and not a US Person; or
(iii) any Directed Selling Efforts in the United States with respect to the Securities;
(b) it has offered and sold, and will offer and sell, Securities to persons in the United States or to, or for the account or benefit of, US U.S. Persons, only except by the Underwriters acting through their U.S. Affiliates to Qualified Institutional Buyers in the following manner:
(i) the Agent has and will offer and sell the Units in the United States only through its US Affiliate (if applicable)accordance with Rule 144A, which was and is on the dates of such offers and sales a duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the applicable securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting offerees, the Agent has or will have reasonable grounds to believe and did or will believe that each US Offeree and each US Purchaser was and is an US Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agent or its affiliates, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Units in the United States;
(iv) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made in the United States or to US Persons was or will be made only to US accredited investors by the Agent through its US Affiliate (if applicable), and in transactions that are exempt from registration under the 1933 Act and any applicable U.S. state securities laws and in accordance with any applicable US federal or state laws or regulations governing the registration and conduct of securities brokers and dealers;Schedule A hereto.
(vj) The provisions of Schedule A of this Agreement apply in respect of all US Offerees and US Purchasers shall be informed that the Securities have not been and will not be registered under the 1933 Act and the Securities are being offered and sold to such purchasers in reliance on an exemption from the registration requirements offers of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will not be registered under the US Securities Act of 1933, as amended (the “1933 Act”) Offered Units and are being offered incorporated by reference in and sold within the United States only to accredited investors (as defined in Rule 501(a) shall form part of Regulation D under the 1933 Act). Prospective purchasers of the Securities are hereby notified that the seller of the Securities is relying upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described hereinthis Agreement.”;
(vi) as a condition of the purchase of the Units, each US Purchaser will be required to execute and deliver to the Agent the US Accredited Investor Certificate to the foregoing effect, among other terms and conditions;
(vii) neither the Agent, its affiliates or any person acting on its behalf (other than the Corporation, its affiliates and any person acting on their behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities; and
(c) the Agent and its US Affiliate make the representations and warranties set out in Exhibit “1” – Agent’s Certificate.
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Sources: Underwriting Agreement