Representation and Warranties of the Company. The Company represents and warrants to Parent that (A) the Company is a corporation duly organized, validly existing and in good standing under the laws of Canada and has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (B) the execution and delivery of this Agreement by the Company and consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue upon exercise of the Option, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable; (E) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant to the HSR Act and rules of The Toronto Stock Exchange.
Appears in 1 contract
Representation and Warranties of the Company. The Company represents represents, warrants, and warrants to Parent that covenants to, and agrees with, each of the Underwriters, that, as of the date hereof and as of the Closing Date:
(Aa) The Company has prepared and filed with the Company is Securities and Exchange Commission (the “Commission”) a corporation duly organizedregistration statement on Form S-1 (Registration No. 333-269438), validly existing and in good standing amendments thereto, and related preliminary prospectuses for the registration under the laws Securities Act of Canada and 1933, as amended (the “Securities Act”), of the Public Securities which registration statement, as so amended (including post-effective amendments, if any), has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (B) the execution and delivery of this Agreement been declared effective by the Company Commission and consummation by copies of which have heretofore been delivered to the Company of Underwriters. The registration statement, as amended at the transactions contemplated hereby have been duly authorized by all necessary corporate action on time it became effective, including the prospectus, financial statements, schedules, exhibits, and other information (if any) deemed to be part of the Company and no other corporate proceedings on registration statement at the part time of effectiveness pursuant to Rule 430A under the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of ParentSecurities Act, is enforceable against hereinafter referred to as the Company in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, “Registration Statement.” If the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue upon exercise of the Option, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate filed or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable; (E) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except required pursuant to the HSR terms hereof to file a registration statement pursuant to Rule 462(b) under the Securities Act and rules of The Toronto Stock Exchange.registering additional Public Securities (a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference herein to the term
Appears in 1 contract
Representation and Warranties of the Company. The Company represents represents, warrants, and warrants to Parent that covenants to, and agrees with, each of the Underwriters, that, as of the date hereof and as of the Closing Date:
(Aa) The Company has prepared and filed with the Company is Securities and Exchange Commission (the “Commission”) a corporation duly organizedregistration statement on Form S-1 (Registration No. 333-269438), validly existing and in good standing amendments thereto, and related preliminary prospectuses for the registration under the laws Securities Act of Canada and 1933, as amended (the “Securities Act”), of the Public Securities which registration statement, as so amended (including post-effective amendments, if any), has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (B) the execution and delivery of this Agreement been declared effective by the Company Commission and consummation by copies of which have heretofore been delivered to the Company of Underwriters. The registration statement, as amended at the transactions contemplated hereby have been duly authorized by all necessary corporate action on time it became effective, including the prospectus, financial statements, schedules, exhibits, and other information (if any) deemed to be part of the Company and no other corporate proceedings on registration statement at the part time of effectiveness pursuant to Rule 430A under the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of ParentSecurities Act, is enforceable against hereinafter referred to as the Company in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, “Registration Statement.” If the Company has taken all necessary corporate and filed or is required pursuant to the terms hereof to file a registration statement pursuant to Rule 462(b) under the Securities Act registering additional Public Securities (a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes effective upon filing, no other action document with respect to authorize and reserve for issuance and to permit it to issue upon exercise the Registration Statement has heretofore been filed with the Commission. All of the Option, and at all times from Public Securities have been registered under the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable Securities Act pursuant to Section 8(athe Registration Statement or, if any Rule 462(b) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this AgreementRegistration Statement is filed, will be validly issued, fully paid and non-assessable; (E) upon delivery duly registered under the Securities Act with the filing of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant to the HSR Act and rules of The Toronto Stock Exchange.Rule 462(b)
Appears in 1 contract
Representation and Warranties of the Company. The Except as Previously Disclosed, the Company represents and warrants to Parent that the Investor as follows:
(Aa) the The Company (i) has been duly incorporated and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of Canada and has the jurisdiction of its incorporation or organization, with corporate power and corporate authority to own its properties and conduct its business as currently conducted; and (ii) has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except in the case of clause (ii), where the failure to be so qualified or in good standing would not have a Material Adverse Effect.
(b) The Company has all requisite corporate power to enter into this Agreement into, consummate the transactions contemplated by, and to carry out its obligations hereunder; (B) under this Agreement, the execution Registration Rights Agreement and the Warrant. The execution, delivery of this Agreement and performance by the Company of this Agreement, the Registration Rights Agreement and the Warrant and the consummation by the Company of the transactions contemplated hereby by this Agreement, the Registration Rights Agreement and the Warrant have been duly authorized by all necessary requisite corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Company. This Agreement has been been, and the Registration Rights Agreement and the Warrant upon execution and delivery thereof will be, duly executed and delivered by the Company Company. Assuming due authorization, execution and constitutes a delivery by the other parties hereto, this Agreement constitutes, and the Registration Rights Agreement and the Warrant upon execution and delivery thereof will constitute, the legal, valid and binding obligation obligations of the Company andCompany, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company it in accordance with their terms, subject in each case to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights and remedies generally and subject, as to enforceability, to the effect of general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law).
(c) The Company has furnished to the Investor resolutions of its terms; (D) except for any filings required under the HSR Act Board of Directors and rules of The Toronto Stock Exchangepursuant to such resolutions, the Company Board of Directors has taken all necessary corporate unanimously approved the terms and other action to authorize and reserve for issuance and to permit it to issue upon exercise conditions of the Optiontransactions contemplated by this Agreement, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with including the terms and conditions of this Agreement, the Warrant and the Registration Rights Agreement.
(d) Immediately upon the Closing, the Shares will be, and the Warrant Shares, to be issued pursuant to Section 1.1(a) will be, when so issued, duly authorized, validly issued, fully paid and non-assessable; (E) upon delivery of the Company Shares nonassessable and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities be free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those Encumbrances other than restrictions on transfer imposed by Parent; applicable securities law and set forth herein.
(Fe) Neither the execution and delivery by the Company of this Agreement or the Registration Rights Agreement, nor the consummation of the transactions contemplated hereby (including the issuance of the Shares) or thereby, nor compliance by the Company do not, and with any of the performance of this Agreement by the Company provisions hereof or thereof will not, (iA) conflict with or violate the Articles result in a breach or violation of Amalgamation or Bylaws or equivalent organizational documents any of the Company terms or any of its subsidiaries; (ii) conflict with or violate any lawprovisions of, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that which, with the giving of notice or lapse of time or both both, would become constitute a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any person any rights of termination, amendment, acceleration or cancellation of, of or result in the creation of a lien or encumbrance any Encumbrance on any of the assets or properties or assets of the Company or any of its subsidiaries pursuant tounder, any material note, bondindenture, mortgage, indenturedeed of trust, loan agreement, lease, contract, agreement, leaseobligation, licensecondition, permit, franchise covenant or other instrument or obligation to which the Company or any of its subsidiaries Subsidiaries is a party or by which the Company or any of its subsidiaries Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, except for any such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (B) violate or conflict with the organizational documents of the Company or any Subsidiary; and (C) violate or conflict with any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their respective properties are bound properties, except for any such violations or affected; (G) the execution and delivery of this Agreement by the Company does conflicts that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has furnished to the Investor a complete and correct copy of its Certificate of Incorporation and Bylaws, each as amended or modified as of the performance date hereof, of this Agreement by the Company will notCompany. Such Certificate of Incorporation and Bylaws are in full force and effect.
(f) Other than the HSR Approval and such consents, require any consentapprovals, approvalauthorizations, authorization orders, registrations or permit ofqualifications as may be required under state securities or “blue sky” laws, no notice to, registration, declaration or filing with, exemption or notification toreview by, or authorization, order, consent or approval of, any Governmental Entity Entity, nor expiration nor termination of any statutory waiting periods, is necessary for the execution, delivery and performance by the Company of this Agreement or the Registration Rights Agreement or the consummation by the Company of the transactions contemplated by this Agreement and the Registration Rights Agreement.
(g) As of the date of this Agreement, and without giving effect to the transactions contemplated by this Agreement, the Company’s authorized capital stock consists of 500,000,000 shares of Common Stock and 50,000,000 preferred shares, par value $0.005 per preferred share (“Preferred Stock”), of which 45,722,068 shares of Common Stock and no shares of Preferred Stock were issued and outstanding as of November 1, 2018. Since November 1, 2018, the Company has not issued or agreed to issue any Common Stock or Preferred Stock, except pursuant to the HSR exercise of options. As of the date of this Agreement and the Closing Date, other than of Common Stock reserved for delivery under the Company’s 2004 Stock Incentive Plan, the Company’s 2010 Long-Term Incentive Plan, the Envestnet, Inc. Management Incentive Plan for Envestnet | Tamarac Management Employees (MIP), the Envestnet, Inc. 2015 Acquisition Equity Award Plan and the Convertible Notes Indentures, the Company has no shares of Common Stock reserved for issuance. There are no other shares of capital stock or other equity securities (including securities convertible, exercisable or exchangeable for capital stock) of the Company that are outstanding. All issued and outstanding shares of Common Stock are duly authorized, validly issued, fully paid and nonassessable and the holders of shares of Common Stock are not entitled to preemptive rights.
(h) Other than as Previously Disclosed, no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which shareholders of the Company may vote (“Company Voting Debt”) are issued or outstanding.
(i) Each Subsidiary of the Company (i) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation or organization, with corporate power and corporate authority to own its properties and conduct its business as currently conducted; and (ii) has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except in the case of clause (ii), where the failure to be so qualified or in good standing would not have a Material Adverse Effect. The outstanding share capital or registered capital, as the case may be, of each Subsidiary of the Company is duly authorized, validly issued, fully paid and non-assessable, and all of the outstanding share capital or registered capital, as the case may be, of each such Subsidiary is owned, directly or indirectly, by the Company free and clear of any Encumbrances and any other material restrictions (including any restrictions on the right to vote, sell or otherwise dispose of such capital stock or other equity interests, but excluding restrictions under the Securities Act or other law relating to securities).
(j) Other than this Agreement, the Warrant and the Registration Rights Agreement, there are no shareholder agreements, voting trusts or other contracts to which the Company is a party or by which it is bound relating to the voting of any shares of capital stock of the Company.
(k) Based in part on the Investor’s representations in Section 2.3, the offer and sale of the Securities is exempt from the registration requirements of the Securities Act and the rules and regulations promulgated thereunder. Without limiting the foregoing, neither the Company nor, to the knowledge of the Company, any other Person authorized by the Company to act on its behalf, has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Shares or the Warrants and neither the Company nor, to the knowledge of the Company, any other Person authorized by the Company to act on its behalf, has made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering or issuance of the Shares or the Warrants under this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act that would result in Regulation D or any other applicable exemption from registration under the Securities Act not being available, nor will the Company take any action or steps that would cause the offering or issuance of the Shares or the Warrants under this Agreement to be integrated with other offerings. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities by any form of general solicitation or general advertising. The Toronto Stock ExchangeCompany has offered the Securities for sale only to the Investor.
(l) The Company is eligible to register the resale of the Securities by the Investor on Form S-3 under the Securities Act.
(m) The consolidated financial statements of the Company included or incorporated by reference in the Commission Reports, as of the date filed with the Commission (and, in the case of registration statements, prospectuses and proxy statements, on the dates of effectiveness and the dates of mailing, respectively, and, in the case of any Commission Report amended or superseded by a filing prior to the date hereof, then on the date of such amending or superseding filing), complied in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto, were prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis during the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission), and fairly presented, in all material respects (subject, in the case of the unaudited statements, to normal, recurring adjustments), the consolidated financial position of the Company and its consolidated Subsidiaries as of the date of such financial statements and the consolidated results of their operations and cash flows for each of the periods then ended.
(n) Since January 1, 2017, the Company timely has filed all reports, proxy statements and other information (the “Commission Reports”) required to be filed by it pursuant to Section 13(a) of the Exchange Act. The Commission Reports (as of the date filed with the Commission and, in the case of registration statements, prospectuses and proxy statements, on the dates of effectiveness and the dates of mailing, respectively, and, in the case of any Commission Reports amended or superseded by a filing prior to the date hereof, then on the date of such amending or superseding filing) (i) complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the applicable rules and regulations promulgated by the Commission thereunder; and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(o) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and the Commission’s rules and guidelines applicable thereto; and except as Previously Disclosed, the Company’s internal control over financial reporting is effective, and the Company is not aware of any material weaknesses in its internal control over financial reporting. Since the date of the latest audited financial statements included in the Commission Reports, there has been no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting.
(p) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.
(q) The Company is in compliance in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and all rules and regulations promulgated thereunder currently in effect and with which the Company is required to comply.
(r) Since December 31, 2017, there has not been a Material Adverse Effect.
(s) Other than as Previously Disclosed, there are no legal or governmental proceedings pending, or to the knowledge of the Company, threatened to which the Company or any of its Subsidiaries is a party or of which any property or assets of the Company or any of its Subsidiaries is the subject which (A) if determined adversely to the Company or any of its Subsidiaries or any officer or director, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; or (B) would be required by the Securities Act to be described in a registration statement on Form S-1 to be filed with the Commission if the offer and sale of the Securities contemplated hereunder were made pursuant to such registration statement that have not been Previously Disclosed.
(t) The Company is not and, after giving effect to the transactions contemplated by this Agreement, will not be required to register as an “investment company” under the Investment Company Act of 1940.
(u) Neither the Company nor any of its Subsidiaries or Affiliates, nor any director, officer, or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any of its Subsidiaries or Affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization,
Appears in 1 contract
Representation and Warranties of the Company. The Company represents and warrants as follows:
(a) The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the "Securities Act"), a registration statement on Form S-1 (File No. 333-88335), including a preliminary prospectus, relating to Parent the Shares. Such registration statement as amended at the time that it becomes effective is referred to collectively in this Agreement as the "Registration Statement," and the prospectuses in the form filed with the Commission as part of the Registration Statement or pursuant to its Rule 424(b), if any, after the Registration Statement becomes effective are referred to collectively as the "Prospectus."
(A▇) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto when so filed complied in all material respects with the provisions of the Securities Act; except that this representation and warranty does not apply to statements in or omissions from any such preliminary prospectus (or any amendment or supplement thereto) made in reliance upon and conformity with information relating to the Underwriter furnished to the Company in writing by such Underwriter expressly for use therein.
(c) The Registration Statement in the form in which it becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective, and the Prospectus filed as part of the Registration Statement and in the form first filed with the Commission under its Rule 424(b), if any, and when any supplement thereto is filed with the Commission, will comply in all material respects with the provisions of the Securities Act and will not contain at any such times an untrue statement of a corporation material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Prospectus (or any amendment or supplement thereto) made in reliance upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein.
(d) All the outstanding shares of the Common Stock of the Company are duly organizedauthorized and validly issued, fully paid and nonassessable and free of preemptive or similar rights; the Shares to be issued and sold by the Company have been duly authorized and upon delivery to the subscribers therefor (the "Subscribers") against payment therefor in accordance with the terms hereof, will have been validly issued and fully paid and will be nonassessable and free of preemptive or similar rights; and the Common Stock conforms in all material respects to the description thereof in the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(e) The Company and its wholly owned subsidiary, Guaranty Bank (the "Bank"), are duly organized and validly existing and in good standing under Virginia law and the laws regulations promulgated by the Board of Canada Governors of the Federal Reserve System and has are duly qualified to do business and are in good standing in all jurisdictions that require such qualification or in which the failure to qualify in such jurisdictions could have, in the aggregate, any material adverse effect on the business, condition or properties of the Company or the Bank. The Company and the Bank hold all material licenses, certificates and permits from governmental authorities necessary for the conduct of their businesses as described in the Prospectus and own, or possess adequate rights to use, all material rights necessary for the conduct of their business and have not received any notice of conflict with the asserted rights of others in respect thereof; and the Company and the Bank have the corporate power and authority to enter into this Agreement own their properties and conduct their businesses as described in the Prospectus.
(f) All of the outstanding shares of capital stock of the Bank are owned by the Company, have been duly authorized and are validly issued, fully paid and nonassessable and are owned by the Comp▇▇▇ ▇▇▇e and clear of any lien, claim, security interest or other encumbrance. The Bank is the Company's only subsidiary.
(g) The Company and the Bank have good and marketable title to carry out its obligations hereunderall property described in the Prospectus as being owned by them, free and clear of all liens, claims, security interests or other encumbrances except such as are described in the Registration Statement and the Prospectus (or any amendment or supplement thereto or in a document filed as an exhibit to the Registration Statement) or such as are not material and do not interfere in any material respect with the use of the property or the conduct of the business of the Company and the Bank taken as a whole, and the property held under lease by the Company and the Bank is held by them under valid and enforceable leases with only such exceptions as in the aggregate are not material and do not interfere in any material respect with the conduct of the business of the Company and the Bank taken as a whole; provided that no representation or warranty is made hereby to the title of the lessor of any such property.
(Bh) There are no legal or governmental proceedings pending, or to the knowledge of the Company threatened, required to be described in the Registration Statement or the Prospectus (or any amendment or supplement thereto) that are not described as required, and there is no contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.
(i) Neither the Company nor the Bank is in violation of their articles of incorporation, as applicable, or bylaws or in default in any material respect in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement indenture, lease or other instrument material to the Company and the Bank which default is material to the Company and the Bank taken as a whole. Neither the issuance nor the sale of the Shares nor the execution and delivery of this Agreement by nor the performance of the obligations of the Company and set forth herein nor the consummation by the Company of the transactions herein contemplated hereby have been duly authorized requires any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except such as may be required under the Securities Act or other securities laws or Blue Sky laws) or will conflict with or constitute a breach of, or default under, the articles of incorporation or bylaws of the Company or the Bank, or constitute a breach or default under any agreement, indenture or other instrument to which the Company or the Bank is a party or by all necessary corporate action on which either of them or any of their property is bound, or any law, administrative regulation or ruling or court decree applicable to the part Company or the Bank or any of their properties, which breach or default is material to the business property of the Company and no other corporate proceedings on the Bank taken as a whole.
(j) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement thereto), the Company has not i▇▇▇▇▇▇▇ any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Company or the Bank taken as a whole, and there has not been any material change in the capital stock, or material increase in the short-term debt or long-term debt, of the Company or the Bank, or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth or results of operations of the Company and the Bank taken as a whole.
(k) BDO Seidman, LLP, who have certified certain of the financial statements ▇▇▇▇▇ with the Commission as part of the Registration Statement and the Prospectus, are independent public accountants as required by the Securities Act.
(l) The Company's financial statements, together with related schedules and notes, forming part of the Registration Statement and the Prospectus, present fairly the financial position and the results of operations of the Company and the Bank at the respective dates or for the respective periods to which they apply; said statements and related notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the financial and statistical information and data set forth in the Registration Statement and the Prospectus is fairly presented and prepared on a basis consistent with such financial statements and the books and records of the Company and the Bank. The Company and the Bank have no material contingent obligations that are not disclosed in the Registration Statement and the Prospectus, as they may be amended or supplemented.
(m) No holders of securities of the Company have rights to the registration of such securities in the offering contemplated hereby.
(n) The Company and the Bank have filed all Federal, state and foreign income tax returns that have been required to be filed and have paid all taxes indicated by said returns and all assessments received by them or any of them to the extent that such taxes have become due, and are not being contested in good faith.
(o) The Company and the Bank hold all material licenses, certificates and permits from governmental authorities that are necessary to authorize this Agreement the conduct of their businesses; and neither the Company nor the Bank have infringed any patents, patent rights, trade names, trademarks or copyrights in any manner material to the business of the transactions contemplated hereby; Company and the Bank taken as a whole.
(Cp) this This Agreement has been duly authorized, executed and delivered by the Company and constitutes is a legal, valid and binding obligation agreement of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company in accordance with its terms; .
(D▇) except for any filings required under the HSR Act and rules of The Toronto Stock ExchangeAll employee benefit plans established, the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue upon exercise of the Option, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate maintained or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable; (E) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement contributed by the Company do notcomply in all material respects with requirements of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and no such plan incurred or assumed any "accumulated funding deficiency" within the performance meaning of this Agreement by the Company will not, (i) conflict with Section 302 of ERISA or violate the Articles of Amalgamation has incurred or Bylaws or equivalent organizational documents of the Company or assumed any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable material liability to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant to the HSR Act and rules of The Toronto Stock ExchangePension Benefit Guaranty Corporation.
Appears in 1 contract
Sources: Underwriting Agreement (Guaranty Financial Corp /Va/)
Representation and Warranties of the Company. (a) The Company represents and warrants to Parent that (A) the Company is a corporation duly organized, validly existing and in good standing under the laws of Canada the Cayman Islands and has the full corporate power and authority to enter into execute and deliver this Agreement and to carry out its obligations hereunder; consummate the transactions contemplated hereby.
(Bb) the The execution and delivery of this Agreement by and the Company and consummation by the Company it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part board of directors of the Company and the stockholders of the Company, if required, and no further consent or authorization is required by the Company, the board of directors of the Company or of its stockholders. No other corporate proceedings on the part of the Company are necessary to approve and authorize the execution and delivery of this Agreement. This Agreement or any of constitutes the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation agreement of the Company andCompany, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company it in accordance with its terms; , except as enforceability may be limited by insolvency, bankruptcy or other similar laws affecting creditors’ rights generally.
(Dc) except for any filings required under The Company’s Registration Statements (“Registration Statement”) on Form F-3 (File No. 333-250145), registering the HSR Act and rules resale of The Toronto Stock Exchange, the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue ADS issuable upon exercise of the OptionWarrants (the “Warrant Shares”) was declared effective by the Securities and Exchange Commission (the “Commission”) on January 8, 2021 remains effective and shall remain effective during the term of this Agreement. The Commission has not issued any orders preventing or suspending the use of the Prospectus contained in the Registration Statement and the Prospectus (as modified or supplemented by information incorporated by reference into such Prospectus) as well as the Company’s other public filings (the “SEC filings”) conforms, and at during the effectiveness of this Agreement will conform, in all times from material respects with the date hereof until the termination requirements of the Option Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”), as amended and do not, and during the effectiveness of this Agreement will not, include any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Warrant Shares have been duly authorized, have been duly reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full issuance and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the OptionWarrants and payment to the Company of the exercise price therefore, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, Warrant Shares will be validly issued, fully paid and non-assessable; .
(Ee) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) Neither the execution and delivery of this Agreement by the Company do not, and nor the performance consummation of this Agreement by the Company transactions contemplated hereby will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse any provisions of time or both would become a default) under, or impair Memorandum and Articles of Association of the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give each as amended to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affecteddate; (Gii) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit offrom, or filing with, with or notification to, any Governmental Entity United States or foreign governmental or regulatory authority or other third party, except pursuant for any such consents approvals, authorizations, permits, filings or notifications, the absence of which would not have a material adverse effect on the Company or the Warrants, (iii) result in a breach of the terms, conditions or provisions of, constitute a default under or cause, permit or give rise to any right of termination, cancellation or acceleration under any of the HSR Act and rules terms, conditions or provisions of The Toronto Stock Exchangeany material agreement to which the Company is a party to.
Appears in 1 contract
Representation and Warranties of the Company. The Company represents represents, warrants, covenants to, and warrants to Parent that agrees with, each of the Underwriters, that, as of the date hereof and as of the Closing Date:
(Aa) The Company has prepared and filed with the Company is Securities and Exchange Commission (the “Commission”) a corporation duly organizedregistration statement on Form S-1 (Registration No. 333-271791), validly existing and in good standing amendments thereto, and related preliminary prospectuses for the registration under the laws Securities Act of Canada and 1933, as amended (the “Securities Act”), of the Firm Shares which registration statement, as so amended (including post-effective amendments, if any), has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (B) the execution and delivery of this Agreement been declared effective by the Company Commission and consummation by copies of which have heretofore been delivered to the Company of Underwriters. The registration statement, as amended at the transactions contemplated hereby have been duly authorized by all necessary corporate action on time it became effective, including the prospectus, financial statements, schedules, exhibits and other information (if any) deemed to be part of the Company and no other corporate proceedings on registration statement at the part time of effectiveness pursuant to Rule 430A under the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of ParentSecurities Act, is enforceable against hereinafter referred to as the Company in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, “Registration Statement.” If the Company has taken all necessary corporate and filed or is required pursuant to the terms hereof to file a registration statement pursuant to Rule 462(b) under the Securities Act registering additional Securities (a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes effective upon filing, no other action document with respect to authorize and reserve for issuance and to permit it to issue upon exercise the Registration Statement has heretofore been filed with the Commission. All of the Option, and at all times from Firm Shares have been registered under the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable Securities Act pursuant to Section 8(athe Registration Statement or, if any Rule 462(b) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this AgreementRegistration Statement is filed, will be validly issued, fully paid and non-assessable; (E) upon delivery duly registered under the Securities Act with the filing of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant to the HSR Act and rules of The Toronto Stock Exchange.Rule 462(b)
Appears in 1 contract
Representation and Warranties of the Company. The Company represents hereby represents, warrants, acknowledges and warrants covenants to Parent the Lender (and acknowledges that (Athe Lender is relying thereon) the that:
6.1 The Company is a corporation duly incorporated or otherwise organized, validly existing and in good standing under the laws of Canada the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Company is not in violation or default of any of the provisions of its articles of incorporation, bylaws or other organizational documents, in each case, as amended and as in effect on the date hereof (the “Organizational Documents”). The Company has furnished or made available to the Lender true and correct copies of each of the Company’s Organizational Documents.
6.2 The Company has the requisite corporate power and authority to enter into this Agreement and perform its obligations under the Transaction Documents and to carry out its obligations hereunder; (B) issue the execution Conversion Shares in accordance with the terms hereof. The execution, delivery and delivery of this Agreement by the Company and consummation performance by the Company of the Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of the Company, and no further consent or authorization of the Company, its board of directors or its shareholders, or any other person or entity (including any governmental authority and any securities exchange), is required in order for the Company to execute, deliver and perform its obligations under the Transaction Documents. The Transaction Documents have been duly executed and delivered by the Company and constitute a valid and binding obligation of the Company enforceable against it in accordance with the terms hereof and thereof, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application (including any limitation of equitable remedies).
6.3 The Conversion Shares have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on Company. The Conversion Shares, when issued to the part of the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company Lender in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue upon exercise of the Option, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will shall be validly issuedissued and outstanding, fully paid and non-assessable; (E) upon delivery of the Company Shares assessable and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of from all material claims, liens, charges, taxes, security interests, encumbrances, rights of first refusal, preemptive or similar rights and other encumbrances with respect to the issue thereof, and security interests the Lender shall be entitled to all rights accorded to a holder of any kind or nature whatsoeverCommon Shares with respect to the Conversion Shares.
6.4 The execution, excluding those imposed by Parent; (F) the execution delivery and delivery of this Agreement performance by the Company do not, of the Transaction Documents and the performance of this Agreement consummation by the Company will notof the transactions contemplated hereby and thereby do not and shall not (i) result in a violation of any provision of the Organizational Documents, (iii) conflict with or violate result in a breach or violation of any of the Articles terms or provisions of, or constitute a default (or an event which, with notice or lapse of Amalgamation time or Bylaws both, would become a default) under, or equivalent organizational documents give rise to any rights of termination, amendment, acceleration or cancellation of, any material agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or is bound, (iii) create or impose a lien, charge or encumbrance on any property or assets of the Company or any of its subsidiaries; Subsidiaries under any agreement or any commitment to which the Company or any such Subsidiary is a party or by which the Company or any of its Subsidiaries is bound or to which any of their respective properties or assets is subject, or (iiiv) conflict with result in a violation of any Canadian or violate any lawU.S. federal, state, provincial, local or foreign statute, rule, regulation, order, judgement judgment or decree applicable to the Company or any of its subsidiaries or by which its any property or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets asset of the Company or any of its subsidiaries are bound or affected (including any applicable securities laws in the U.S. and Canada and the rules and regulations of the Nasdaq Capital Market or the Toronto Stock Exchange (the “TSX”)).
6.5 As of the date hereof, the authorized share capital of the Company consists of an unlimited number of Common Shares, of which (i) 2,143,366 shares are issued and outstanding, (ii) zero shares are held as treasury shares, (iii) 39,280 shares are reserved for future issuance pursuant to the Company’s equity incentive plans, of which approximately 12,930 shares remain available for future option grants or stock awards, and (iv) 1,267,585 shares are reserved for issuance upon the exercise of warrants issued by the Company. All of such outstanding Common Shares have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule 6.5 hereto, (i) no shares of the Company’s authorized capital are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any material notecharacter whatsoever relating to, bondor securities or rights convertible into, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which any Common Shares of the Company or any common shares of any of its subsidiaries is a party Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries Subsidiaries is or its may become bound to issue additional shares of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of the Company or any of its Subsidiaries, (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except the Original IRA), (iv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries, (v) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Conversion Shares as described in this Agreement and (vi) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
6.6 The Company is not required under any Canadian or U.S. federal, state, provincial, local or foreign law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency (including, without limitation, the Nasdaq Capital Market and the TSX) in order for it to execute, deliver or perform any of its obligations under the Transaction Documents, or to issue the Conversion Shares to the Lender in accordance with the terms hereof (other than such consents, authorizations, orders, filings or registrations as have been obtained or made prior to the date hereof); provided, however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the representations and warranties of the Lender in the Transaction Documents, as applicable, and the compliance by the Lender with its covenants and agreements contained in the Transaction Documents, as applicable.
6.7 The Company has complied and shall comply with all applicable securities laws in connection with the offer, issuance and sale of the Conversion Shares hereunder, including, without limitation, the applicable requirements of the Securities Act. Each registration statement, upon filing with the Commission and at the time it is declared effective by the Commission, shall satisfy all of the requirements of the Securities Act to register the resale of the Conversion Shares included therein by the Lender on a delayed or continuous basis under Rule 415 under the Securities Act at then-prevailing market prices, and not fixed prices. The Company is not, and has not previously been at any time, an issuer identified in, or subject to, Rule 144(i).
6.8 The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Organizational Documents or the federal laws of Canada that is or could become applicable to the Lender as a result of the Investor and the Company fulfilling their respective properties are bound obligations or affected; exercising their respective rights under the Transaction Documents and the transactions contemplated hereby and thereby (G) as applicable), including, without limitation, as a result of the execution Company’s issuance of the Conversion Shares and delivery the Lender’s ownership of this Agreement the Conversion Shares.
6.9 Assuming the Lender’s ownership of the Company’s equity securities set forth on Exhibit A, the Lender, after giving effect to the Conversion, shall continue to be able to fully exercise its warrants to purchase Common Shares and fully exercise its voting rights with respect to the Common Shares it would receive upon full exercise thereof (together, the “Warrant Exercise”), none of which shall violate any of the representations and warranties made by the Company does not, in the Transaction Documents as if they applied to the Warrant Exercise mutatis mutandis.
6.10 The Company has received the conditional approval of the TSX to the listing and posting of the performance of this Agreement Conversion Shares subject only to satisfaction by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant of certain standard post-closing conditions imposed by the TSX. No approval of the Nasdaq Capital Market is required to the HSR Act listing of the Conversion Shares thereon.
6.11 Schedule 6.11 hereto sets forth the name and rules jurisdiction of The Toronto Stock Exchangeformation or incorporation of each subsidiary (each, a “Subsidiary”, and collectively, “Subsidiaries”) of the Company as of the date hereof and, except as set forth on Schedule 6.11, the Company does not have any other Subsidiaries as of the date hereof. No Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s share capital, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.
Appears in 1 contract
Sources: Debt Conversion and Interest Payment Agreement (Aptose Biosciences Inc.)
Representation and Warranties of the Company. (a) The Company represents and warrants to Parent that (A) the Company is a corporation duly organized, validly existing and in good standing under the laws of Canada the Cayman Islands and has the full corporate power and authority to enter into execute and deliver this Agreement and to carry out its obligations hereunder; consummate the transactions contemplated hereby.
(Bb) the The execution and delivery of this Agreement by and the Company and consummation by the Company it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part board of directors of the Company and the stockholders of the Company, if required, and no further consent or authorization is required by the Company, the board of directors of the Company or of its stockholders. No other corporate proceedings on the part of the Company are necessary to approve and authorize the execution and delivery of this Agreement. This Agreement or any of constitutes the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation agreement of the Company andCompany, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company it in accordance with its terms; , except as enforceability may be limited by insolvency, bankruptcy or other similar laws affecting creditors’ rights generally.
(Dc) except for any filings required under The Company’s Registration Statements (“Registration Statement”) on Form F-3 (File No. 333-250145), registering the HSR Act and rules resale of The Toronto Stock Exchange, the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue ADS issuable upon exercise of the OptionWarrants (the “Warrant Shares”) was declared effective by the Securities and Exchange Commission (the “Commission”) on February 8, 2021 remains effective and shall remain effective during the term of this Agreement. The Commission has not issued any orders preventing or suspending the use of the Prospectus contained in the Registration Statement and the Prospectus (as modified or supplemented by information incorporated by reference into such Prospectus) as well as the Company’s other public filings (the “SEC filings”) conforms, and at during the effectiveness of this Agreement will conform, in all times from material respects with the date hereof until the termination requirements of the Option Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”), as amended and do not, and during the effectiveness of this Agreement will not, include any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Warrant Shares have been duly authorized, have been duly reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full issuance and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the OptionWarrants and payment to the Company of the exercise price therefore, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, Warrant Shares will be validly issued, fully paid and non-assessable; .
(Ee) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) Neither the execution and delivery of this Agreement by the Company do not, and nor the performance consummation of this Agreement by the Company transactions contemplated hereby will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse any provisions of time or both would become a default) under, or impair Memorandum and Articles of Association of the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give each as amended to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affecteddate; (Gii) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit offrom, or filing with, with or notification to, any Governmental Entity United States or foreign governmental or regulatory authority or other third party, except pursuant for any such consents approvals, authorizations, permits, filings or notifications, the absence of which would not have a material adverse effect on the Company or the Warrants, (iii) result in a breach of the terms, conditions or provisions of, constitute a default under or cause, permit or give rise to any right of termination, cancellation or acceleration under any of the HSR Act and rules terms, conditions or provisions of The Toronto Stock Exchangeany material agreement to which the Company is a party to.
Appears in 1 contract
Representation and Warranties of the Company. (a) The Company represents and warrants to Parent that (A) the Company is a corporation duly organized, validly existing and in good standing under the laws of Canada Delaware and has the full corporate power and authority to enter into execute and deliver this Agreement and to carry out its obligations hereunder; consummate the transactions contemplated hereby. 3▇▇ ▇▇▇▇ ▇▇▇. ▇▇ ▇▇ * ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ * tel (B▇▇▇) the ▇▇▇-▇▇▇▇ * (▇▇▇) ▇▇▇-▇▇▇▇ * fax (▇▇▇) ▇▇▇-▇▇▇▇ * w▇▇.▇▇▇▇▇▇▇▇.▇▇▇
(b) The execution and delivery of this Agreement by and the Company and consummation by the Company it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part board of directors of the Company and the stockholders of the Company, if required, and no further consent or authorization is required by the Company, the board of directors of the Company or of its stockholders. No other corporate proceedings on the part of the Company are necessary to approve and authorize the execution and delivery of this Agreement. This Agreement or any of constitutes the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation agreement of the Company andCompany, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company it in accordance with its terms; , except as enforceability may be limited by insolvency, bankruptcy or other similar laws affecting creditors’ rights generally.
(Dc) except The shares of common stock underlying the Warrants have been registered for resale on a Registration Statement(s) (the “Registration Statement(s)”), which has been declared effective by the Securities and Exchange Commission (the “Commission”) and which remains effective and shall remain effective during the term of this Agreement. The Commission has not issued any orders preventing or suspending the use of the Prospectus contained in the Registration Statement(s) and the Prospectus (as modified or supplemented by information incorporated by reference into such Prospectus) as well as the Company’s other public filings (the “SEC filings”) conforms, and during the effectiveness of this Agreement will conform, in all material respects with the requirements of the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”), as amended and do not, and during the effectiveness of this Agreement will not, include any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The shares of common stock underlying the HSR Act and rules of The Toronto Stock ExchangeWarrants have been duly authorized, the Company has taken all necessary corporate and other action to authorize and reserve have been duly reserved for issuance and to permit it to issue upon exercise of the Option, Warrants and at all times from payment to the date hereof until the termination Company of the Option will have reserved for issuanceexercise price therefore, a sufficient number of unissued Company the Warrant Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable; .
(Ee) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) Neither the execution and delivery of this Agreement by the Company do not, and nor the performance consummation of this Agreement by the Company transactions contemplated hereby will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse any provisions of time or both would become a default) under, or impair Memorandum and Articles of Association of the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give each as amended to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affecteddate; (Gii) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit offrom, or filing with, with or notification to, any Governmental Entity United States or foreign governmental or regulatory authority or other third party, except pursuant for any such consents approvals, authorizations, permits, filings or notifications, the absence of which would not have a material adverse effect on the Company or the Warrants, (iii) result in a breach of the terms, conditions or provisions of, constitute a default under or cause, permit or give rise to any right of termination, cancellation or acceleration under any of the HSR Act and rules terms, conditions or provisions of The Toronto Stock Exchangeany material agreement to which the Company is a party to.
Appears in 1 contract
Sources: Financial Advisory Agreement (Brainstorm Cell Therapeutics Inc.)
Representation and Warranties of the Company. The Company represents represents, warrants, and warrants to Parent that covenants to, and agrees with, each of the Underwriters, that, as of the date hereof and as of the Closing Date:
(Aa) The Company has prepared and filed with the Company is Securities and Exchange Commission (the “Commission”) a corporation duly organizedregistration statement on Form F-1 (Registration No. 333-[ ]), validly existing and in good standing amendments thereto, and related preliminary prospectuses for the registration under the laws Securities Act of Canada and 1933, as amended (the “Securities Act”), of the Public Securities which registration statement, as so amended (including post-effective amendments, if any), has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (B) the execution and delivery of this Agreement been declared effective by the Company Commission and consummation by copies of which have heretofore been delivered to the Company of Underwriters. The registration statement, as amended at the transactions contemplated hereby have been duly authorized by all necessary corporate action on time it became effective, including the prospectus, financial statements, schedules, exhibits, and other information (if any) deemed to be part of the Company and no other corporate proceedings on registration statement at the part time of effectiveness pursuant to Rule 430A under the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of ParentSecurities Act, is enforceable against hereinafter referred to as the Company in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, “Registration Statement.” If the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue upon exercise of the Option, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate filed or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable; (E) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except required pursuant to the HSR terms hereof to file a registration statement pursuant to Rule 462(b) under the Securities Act and rules registering additional Public Securities (a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes effective upon filing, no other document with respect to the Registration Statement has heretofore been filed with the Commission. All of The Toronto Stock Exchange.the Public Securities have been registered under the Securities Act pursuant to the Registration Statement or, if any Rule
Appears in 1 contract
Sources: Underwriting Agreement (Vision Marine Technologies Inc.)
Representation and Warranties of the Company. The Company represents represents, warrants, and warrants to Parent that covenants to, and agrees with, each of the Underwriters, that, as of the date hereof and as of the Closing Date:
(Aa) The Company has prepared and filed with the Company is Securities and Exchange Commission (the “Commission”) a corporation duly organizedregistration statement on Form F-1 (Registration No. 333-[ ]), validly existing and in good standing amendments thereto, and related preliminary prospectuses for the registration under the laws Securities Act of Canada and 1933, as amended (the “Securities Act”), of the Public Securities which registration statement, as so amended (including post-effective amendments, if any), has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (B) the execution and delivery of this Agreement been declared effective by the Company Commission and consummation by copies of which have heretofore been delivered to the Company of Underwriters. The registration statement, as amended at the transactions contemplated hereby have been duly authorized by all necessary corporate action on time it became effective, including the prospectus, financial statements, schedules, exhibits, and other information (if any) deemed to be part of the Company and no other corporate proceedings on registration statement at the part time of effectiveness pursuant to Rule 430A under the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of ParentSecurities Act, is enforceable against hereinafter referred to as the Company in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, “Registration Statement.” If the Company has taken all necessary corporate and filed or is required pursuant to the terms hereof to file a registration statement pursuant to Rule 462(b) under the Securities Act registering additional Public Securities (a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes effective upon filing, no other action document with respect to authorize and reserve for issuance and to permit it to issue upon exercise the Registration Statement has heretofore been filed with the Commission. All of the Option, and at all times from Public Securities have been registered under the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable Securities Act pursuant to Section 8(athe Registration Statement or, if any Rule 462(b) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this AgreementRegistration Statement is filed, will be validly issued, fully paid and non-assessable; (E) upon delivery duly registered under the Securities Act with the filing of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant to the HSR Act and rules of The Toronto Stock Exchange.Rule 462(b)
Appears in 1 contract
Sources: Underwriting Agreement (Vision Marine Technologies Inc.)
Representation and Warranties of the Company. The Company represents hereby represents, warrants, acknowledges and warrants covenants to Parent the Lender (and acknowledges that (Athe Lender is relying thereon) the that:
6.1 The Company is a corporation duly incorporated or otherwise organized, validly existing and in good standing under the laws of Canada the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Company is not in violation or default of any of the provisions of its articles of incorporation, bylaws or other organizational documents, in each case, as amended and as in effect on the date hereof (the “Organizational Documents”). The Company has furnished or made available to the Lender true and correct copies of each of the Company’s Organizational Documents.
6.2 The Company has the requisite corporate power and authority to enter into this Agreement and perform its obligations under the Transaction Documents and to carry out its obligations hereunder; (B) issue the execution Conversion Shares in accordance with the terms hereof. The execution, delivery and delivery of this Agreement by the Company and consummation performance by the Company of the Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of the Company, and no further consent or authorization of the Company, its board of directors or its shareholders, or any other person or entity (including any governmental authority and any securities exchange), is required in order for the Company to execute, deliver and perform its obligations under the Transaction Documents. The Transaction Documents have been duly executed and delivered by the Company and constitute a valid and binding obligation of the Company enforceable against it in accordance with the terms hereof and thereof, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application (including any limitation of equitable remedies).
6.3 The Conversion Shares have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on Company. The Conversion Shares, when issued to the part of the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company Lender in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue upon exercise of the Option, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will shall be validly issuedissued and outstanding, fully paid and non-assessable; (E) upon delivery of the Company Shares assessable and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of from all material claims, liens, charges, taxes, security interests, encumbrances, rights of first refusal, preemptive or similar rights and other encumbrances with respect to the issue thereof, and security interests the Lender shall be entitled to all rights accorded to a holder of any kind or nature whatsoeverCommon Shares with respect to the Conversion Shares.
6.4 The execution, excluding those imposed by Parent; (F) the execution delivery and delivery of this Agreement performance by the Company do not, of the Transaction Documents and the performance of this Agreement consummation by the Company will notof the transactions contemplated hereby and thereby do not and shall not (i) result in a violation of any provision of the Organizational Documents, (iii) conflict with or violate result in a breach or violation of any of the Articles terms or provisions of, or constitute a default (or an event which, with notice or lapse of Amalgamation time or Bylaws both, would become a default) under, or equivalent organizational documents give rise to any rights of termination, amendment, acceleration or cancellation of, any material agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or is bound, (iii) create or impose a lien, charge or encumbrance on any property or assets of the Company or any of its subsidiaries; Subsidiaries under any agreement or any commitment to which the Company or any such Subsidiary is a party or by which the Company or any of its Subsidiaries is bound or to which any of their respective properties or assets is subject, or (iiiv) conflict with result in a violation of any Canadian or violate any lawU.S. federal, state, provincial, local or foreign statute, rule, regulation, order, judgement judgment or decree applicable to the Company or any of its subsidiaries or by which its any property or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets asset of the Company or any of its subsidiaries are bound or affected (including any applicable securities laws in the U.S. and Canada and the rules and regulations of the Nasdaq Capital Market or the Toronto Stock Exchange (the “TSX”)).
6.5 As of the date hereof, the authorized share capital of the Company consists of an unlimited number of Common Shares, of which (i) 2,143,366 shares are issued and outstanding, (ii) zero shares are held as treasury shares, (iii) 39,280 shares are reserved for future issuance pursuant to the Company’s equity incentive plans, of which approximately 12,390 shares remain available for future option grants or stock awards, and (iv) 1,267,585 shares are reserved for issuance upon the exercise of warrants issued by the Company. All of such outstanding Common Shares have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule 6.5 hereto, (i) no shares of the Company’s authorized capital are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any material notecharacter whatsoever relating to, bondor securities or rights convertible into, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which any Common Shares of the Company or any common shares of any of its subsidiaries is a party Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries Subsidiaries is or its may become bound to issue additional shares of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of the Company or any of its Subsidiaries, (iii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except the Original IRA), (iv) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries, (v) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Conversion Shares as described in this Agreement and (vi) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
6.6 The Company is not required under any Canadian or U.S. federal, state, provincial, local or foreign law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency (including, without limitation, the Nasdaq Capital Market and the TSX) in order for it to execute, deliver or perform any of its obligations under the Transaction Documents, or to issue the Conversion Shares to the Lender in accordance with the terms hereof (other than such consents, authorizations, orders, filings or registrations as have been obtained or made prior to the date hereof); provided, however, that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the representations and warranties of the Lender in the Transaction Documents, as applicable, and the compliance by the Lender with its covenants and agreements contained in the Transaction Documents, as applicable.
6.7 The Company has complied and shall comply with all applicable securities laws in connection with the offer, issuance and sale of the Conversion Shares hereunder, including, without limitation, the applicable requirements of the Securities Act. Each registration statement, upon filing with the Commission and at the time it is declared effective by the Commission, shall satisfy all of the requirements of the Securities Act to register the resale of the Conversion Shares included therein by the Lender on a delayed or continuous basis under Rule 415 under the Securities Act at then-prevailing market prices, and not fixed prices. The Company is not, and has not previously been at any time, an issuer identified in, or subject to, Rule 144(i).
6.8 The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Organizational Documents or the federal laws of Canada that is or could become applicable to the Lender as a result of the Investor and the Company fulfilling their respective properties are bound obligations or affected; exercising their respective rights under the Transaction Documents and the transactions contemplated hereby and thereby (G) as applicable), including, without limitation, as a result of the execution Company’s issuance of the Conversion Shares and delivery the Lender’s ownership of this Agreement the Conversion Shares.
6.9 Assuming the Lender’s ownership of the Company’s equity securities set forth on Exhibit A, the Lender, after giving effect to the Conversion, shall continue to be able to fully exercise its warrants to purchase Common Shares and fully exercise its voting rights with respect to the Common Shares it would receive upon full exercise thereof (together, the “Warrant Exercise”), none of which shall violate any of the representations and warranties made by the Company does not, in the Transaction Documents as if they applied to the Warrant Exercise mutatis mutandis.
6.10 The Company has received the conditional approval of the TSX to the listing and posting of the performance of this Agreement Conversion Shares subject only to satisfaction by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant of certain standard post-closing conditions imposed by the TSX. No approval of the Nasdaq Capital Market is required to the HSR Act listing of the Conversion Shares thereon.
6.11 Schedule 6.11 hereto sets forth the name and rules jurisdiction of The Toronto Stock Exchangeformation or incorporation of each subsidiary (each, a “Subsidiary”, and collectively, “Subsidiaries”) of the Company as of the date hereof and, except as set forth on Schedule 6.11, the Company does not have any other Subsidiaries as of the date hereof. No Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s share capital, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.
Appears in 1 contract
Sources: Debt Conversion and Interest Payment Agreement (Hanmi Pharmaceutical Co., Ltd.)
Representation and Warranties of the Company. The Company represents represents, warrants and covenants to, and agrees with, each of the Underwriters, and, solely with respect to subsection (f) of this Section, the Representative represents, warrants to Parent that and covenants to, and agrees with the Company, that, as of the date hereof and as of the Closing Date:
(Aa) The Company has prepared and filed with the Company is Securities and Exchange Commission (the “Commission”) a corporation duly organizedregistration statement on Form S-1 (Registration No. 333-266769), validly existing and in good standing amendments thereto, and related preliminary prospectuses for the registration under the laws Securities Act of Canada and 1933, as amended (the “Securities Act”), of the Securities which registration statement, as so amended (including post-effective amendments, if any), has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (B) the execution and delivery of this Agreement been declared effective by the Company Commission and consummation by copies of which have heretofore been delivered to the Company of Underwriters. The registration statement, as amended at the transactions contemplated hereby have been duly authorized by all necessary corporate action on time it became effective, including the prospectus, financial statements, schedules, exhibits and other information (if any) deemed to be part of the Company and no other corporate proceedings on registration statement at the part time of effectiveness pursuant to Rule 430A under the Company are necessary to authorize this Agreement or any of the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of ParentSecurities Act, is enforceable against hereinafter referred to as the Company in accordance with its terms; (D) except for any filings required under the HSR Act and rules of The Toronto Stock Exchange, “Registration Statement.” If the Company has taken all necessary corporate and filed or is required pursuant to the terms hereof to file a registration statement pursuant to Rule 462(b) under the Securities Act registering additional Securities (a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes effective upon filing, no other action document with respect to authorize and reserve for issuance and to permit it to issue upon exercise the Registration Statement has heretofore been filed with the Commission. All of the Option, and at all times from Securities have been registered under the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable Securities Act pursuant to Section 8(athe Registration Statement or, if any Rule 462(b) upon exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this AgreementRegistration Statement is filed, will be validly issued, fully paid and non-assessable; (E) upon delivery duly registered under the Securities Act with the filing of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) the execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affected; (G) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity except pursuant to the HSR Act and rules of The Toronto Stock Exchange.Rule 462(b)
Appears in 1 contract
Representation and Warranties of the Company. (a) The Company represents and warrants to Parent that (A) the Company is a corporation duly organized, validly existing and in good standing under the laws of Canada the Cayman Islands and has the full corporate power and authority to enter into execute and deliver this Agreement and to carry out its obligations hereunder; consummate the transactions contemplated hereby.
(Bb) the The execution and delivery of this Agreement by and the Company and consummation by the Company it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part board of directors of the Company and the stockholders of the Company, if required, and no further consent or authorization is required by the Company, the board of directors of the Company or of its stockholders. No other corporate proceedings on the part of the Company are necessary to approve and authorize the execution and delivery of this Agreement. This Agreement or any of constitutes the transactions contemplated hereby; (C) this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation agreement of the Company andCompany, assuming this Agreement constitutes a legal, valid and binding obligation of Parent, is enforceable against the Company it in accordance with its terms; , except as enforceability may be limited by insolvency, bankruptcy or other similar laws affecting creditors’ rights generally.
(Dc) except for any filings required under The Company’s Registration Statement (“Registration Statement”) on Form F-3 (File No. 333-253402), registering the HSR Act and rules resale of The Toronto Stock Exchange, the Company has taken all necessary corporate and other action to authorize and reserve for issuance and to permit it to issue ADS issuable upon exercise of the OptionWarrants (the “Warrant Shares”) was deemed immediately effective on February 23, 2021, remains effective and shall remain effective during the term of this Agreement. The Securities and Exchange Commission (the “Commission”) has not issued any orders preventing or suspending the use of the Prospectus contained in the Registration Statement and the Prospectus (as modified or supplemented by information incorporated by reference into such Prospectus) as well as the Company’s other public filings (the “SEC filings”) conforms, and at during the effectiveness of this Agreement will conform, in all times from material respects with the date hereof until the termination requirements of the Option Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”), as amended and do not, and during the effectiveness of this Agreement will not, include any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Warrant Shares have been duly authorized, have been duly reserved for issuance, a sufficient number of unissued Company Shares for Parent to exercise the Option in full issuance and will take all necessary corporate or other action to authorize and reserve for issuance all additional Company Shares or other securities which may be issuable pursuant to Section 8(a) upon exercise of the OptionWarrants and payment to the Company of the exercise price therefore, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, Warrant Shares will be validly issued, fully paid and non-assessable; .
(Ee) upon delivery of the Company Shares and any other securities to Parent upon exercise of the Option, Parent will acquire such Company Shares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by Parent; (F) Neither the execution and delivery of this Agreement by the Company do not, and nor the performance consummation of this Agreement by the Company transactions contemplated hereby will not, (i) conflict with or violate the Articles of Amalgamation or Bylaws or equivalent organizational documents of the Company or any of its subsidiaries; (ii) conflict with or violate any law, rule, regulation, order, judgement or decree applicable to the Company or any of its subsidiaries or by which its or any of their respective properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse any provisions of time or both would become a default) under, or impair Memorandum and Articles of Association of the Company's or any of its subsidiaries' rights or alter the rights or obligations of any third party under, or give each as amended to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its subsidiaries pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or its or any of their respective properties are bound or affecteddate; (Gii) the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent, approval, authorization or permit offrom, or filing with, with or notification to, any Governmental Entity United States or foreign governmental or regulatory authority or other third party, except pursuant for any such consents approvals, authorizations, permits, filings or notifications, the absence of which would not have a material adverse effect on the Company or the Warrants, (iii) result in a breach of the terms, conditions or provisions of, constitute a default under or cause, permit or give rise to any right of termination, cancellation or acceleration under any of the HSR Act and rules terms, conditions or provisions of The Toronto Stock Exchangeany material agreement to which the Company is a party to.
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