Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that: (a) The Vendor is a corporation existing under the laws of the State of Delaware; (b) The Vendor is the legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”). (c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances. (d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor. (e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court. (f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement. (g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares. (h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of: (i) any of the provisions of the organizational documents or by-laws of the Vendor; (ii) any contract (written or oral) or other instrument to which the Vendor is a party or by which the Vendor is bound; or (iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply. (i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation. (j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions. (k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions. (l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares. (m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser. (n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares. (o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules. (p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws. (q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act). (r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors. (s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws. (t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario). (u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument). (v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends. (u) The Vendor acknowledges that it has been notified: (i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”); (ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario; (iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario; (iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and (v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants hereby makes to the Purchaser thatthe following representations and warranties and acknowledges that the Purchaser is relying upon such representations and warranties in connection with entering into this Agreement:
(a) The Vendor Corporation is a corporation existing duly incorporated, organized and subsisting under the laws of Canada with the State of Delaware;corporate power to own its assets and to carry on its business.
(b) The Vendor is authorized capital of the legalCorporation consists of (i) an unlimited number of common shares, and the Accounts are the beneficial, owner (ii) an unlimited number of preferred shares.
(c) All of the Subject issued and outstanding Shares free are beneficially owned by the Vendor and clear of all lienspledged to TEMIC pursuant to a share pledge agreement dated October 6, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others 2004 (collectively, the “EncumbrancesShare Pledge Agreement”).
(cd) The Vendor has good and sufficient the power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of Purchaser, subject to all Encumbrances andexisting Charges, upon payment of including the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the VendorShare Pledge Agreement.
(e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in Neither the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational constating documents or by-laws of the VendorVendor or of the Corporation;
(ii) any contract (written or oral) agreement or other instrument to which the Vendor or the Corporation is a party or by which the Vendor or the Corporation is bound; or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), Applicable Law in respect of which the Vendor or the Corporation must comply, except to the extent that such violation would not reasonably be expected to limit in any material manner the operations of the Corporation’s business as they are presently conducted.
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(jg) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No a non-resident person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale section 116 of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited InvestorsTax Act.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:
(a) The the Vendor is a corporation existing has been duly incorporated and organized and in good standing under the laws of the State jurisdiction of Delawareits incorporation and has all requisite corporate power and capacity to own or lease its property, to carry on its business as now being conducted by it, to enter this Agreement and perform its obligations hereunder. The Vendor is duly qualified or licensed and in good standing to do business in each jurisdiction in which the nature of the business or the property and assets owned or leased by it make such qualification or licensing necessary;
(b) The Vendor is the legal, execution and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor by the completion Vendor and the consummation of the transactions contemplated hereby by the Vendor provided for herein will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Vendor under:
(i) any of the provisions of the organizational documents or by-laws of the Vendor;
(ii) any contract (written or oral) or other instrument to which the Vendor is a party or by which the Vendor it is bound; or;
(ii) any provision of the constating documents or by-laws or resolutions of the board of directors (or any committee thereof) or shareholders of the Vendor;
(iii) any lawjudgement, statute, rule, regulation, or any existing applicable decree, judgment, order or order by award of any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for arbitrator having jurisdiction over the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) any license, permit, approval, consent or other authorization held by the Vendor; or
(v) any applicable, law, statute, ordinance, regulation or rule;
(c) this Agreement has been duly authorized, executed and delivered by the Vendor and is a legal, valid and binding obligation of, and enforceable against the Vendor by the Purchaser in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency and other laws affecting the enforcement of rights of creditors generally and except that equitable remedies may only be granted in the Administrative Assistant discretion of a court of competent jurisdiction;
(d) there is no requirement for the Vendor to make any filing with, give any notice to or obtain any license, permit, certificate, registration, authorization, consent or approval of, any government or regulatory authority as a condition to the Director of Corporate Finance lawful consummation of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇transactions contemplated by this Agreement. There is no requirement under any Contract to which the Vendor is a party or by which it is bound to give any notice to, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding to obtain the consent or approval of any questions about party to such contract relating to the OSC’s indirect collection consummation of the transactions contemplated by this Agreement;
(e) the Vendor Informationbeneficially owns the Purchased Shares free and clear of all charges, security interests, pledges, demands and other encumbrances and has the exclusive right and full power to sell, assign and transfer the Purchased Shares to the Purchaser;
(f) no person, firm or corporation has any agreement, option or any right capable of becoming an agreement or option for the acquisition from the Vendor of any of the Purchased Shares; and
(vg) the Vendor authorizes is not a non-resident of Canada within the indirect collection meaning of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the ClosingTax Act.
Appears in 1 contract
Sources: Exchange Agreement (International Menu Solutions Corp)
Vendor’s Representations and Warranties. The Vendor 5.1 Each of the Vendors severally warrants and represents and warrants to the Purchaser, with the intent that the Purchaser will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, that:
(a) The the Vendor is a corporation existing under the laws registered holder of the State Vendors' Shares set opposite his name in Schedule N, free and clear of Delawareall Liens and the Vendor has no interest, legal or beneficial, direct or indirect, in any shares of, or the assets or business of, the Company other than such Vendors' Shares;
(b) The the Company is not indebted to the Vendor is the legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests Vendor has no claims of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).kind against the Company;
(c) The the Vendor has the power and capacity and good and sufficient power, right and authority and right to enter into and deliver this Agreement on the terms and conditions herein set forth and to transfer the legal and beneficial title and ownership of the Subject Vendors' Shares on behalf of the Accounts set opposite his name in Schedule N to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.Purchaser;
(d) The execution, delivery and performance the making of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by and the Vendor performance of and compliance with the terms hereof does not and will not conflict with or result in the violation of:
(i) a breach of or violate any of the terms, conditions or provisions of any UK law, judgement, order, injunction, decree, regulation or ruling of any court or governmental authority to which the organizational documents Vendor is subject or by-laws of the Vendor;
(ii) constitute or result in a default under any agreement, contract (written or oral) or other instrument commitment to which the Vendor is a party party;
(e) the Vendor does not have any specific information relating to the Company which is not generally known or by which has not been disclosed to the Purchaser and which if known to the Purchaser could reasonably be expected to have a materially adverse effect on the value of the Vendor's Shares;
(f) the Vendor is bound; or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.either:
(i) The Vendor has not disclosed to a U.S. Person and is not acquiring the Purchaser any confidential Spectrum Shares for the account or materialbenefit of a U.S. Person, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or in which case the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands aware that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Spectrum Shares have not been registered under the 1933 Act and will may not be offered or sold in the United States during the 40 day period commencing on the date of issuance of the Spectrum Shares unless the Spectrum Shares are registered under the 1933 Act or an exemption from the securities laws of any state of 1933 Act is available; or
(ii) a U.S. Person, in which case the United States, and will, therefore, Vendor is aware that the Spectrum Shares to be “restricted securities” within the meaning of Rule 144 issued to him have not been registered under the 1933 Act, Act and that the offer and sale of the Consideration Shares to it will may not be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.offered or sold unless:
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR the sale is to the Purchaser;
(2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time sale is made outside the Purchaser is United States in a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with transaction meeting the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, Act and in compliance with applicable local laws and regulations;
(3) the sale is made pursuant to the exemption from the registration requirements under the 1933 Act provided by Rule 144 thereunder if available and in accordance with any applicable state securities or "Blue Sky" laws; or
(4) the Spectrum Shares are sold in a transaction that does not require registration under the 1933 Act or any applicable U.S. state laws and regulations governing the offer and sale of securities, and it has prior to such sale furnished to the Purchaser an opinion of counsel reasonably satisfactory to the Purchaser; and the certificates representing such Spectrum Shares will bear a legend evidencing such restrictions on resale; provided that if the Spectrum Shares are being sold under clause (ii) above, the legend may be removed by providing a declaration to the Purchaser’s applicable registrar and transfer agent for such securities, of the Purchaser in the form attached hereto as Schedule A agreed upon by the Purchaser (or as the Purchaser may reasonably prescribe from time to time); notwithstanding ;
(g) the foregoing, Vendor is aware that the Purchaser’s applicable transfer agent may impose additional Spectrum Shares will be issued pursuant to exemptions from registration and prospectus requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S which are available under the 1933 B.C. Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form Ontario Act and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without as a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notifiedconsequence:
(i) the Vendor may be restricted from using most of the delivery civil remedies available under such legislation including a right of rescission which would exist in connection with the use of a prospectus to issue the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”)Spectrum Shares;
(ii) the Purchaser is relieved from certain obligations that would otherwise apply under such legislation including the Vendor Information is being collected indirectly by obligation to amend a prospectus, if used to issue the OSC under Spectrum Shares, in circumstances where a material change occurred in the authority granted to it by affairs of the securities laws of OntarioPurchaser;
(iii) that the Vendor Information is being collected Spectrum Shares are restricted from transfer within the province of British Columbia for a period of one year from the purposes date of the administration and enforcement issuance of the Securities Laws of OntarioSpectrum Shares;
(iv) that the Administrative Assistant Spectrum Shares may not be resold within the province of Ontario or otherwise to Canadian residents for a period of 40 days from the Director of Corporate Finance date of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection issuance of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations Spectrum Shares and warranties of the Vendor set forth in this Section 6 will survive regard the Closing.Purchaser shall be entitled to take such steps as the Purchaser determines appropriate, including the issuing of temporary certificates, to ensure compliance with this resale restriction. In this regard the Purchaser shall issue the Vendors at Closing with temporary certificates representing the Spectrum Shares, which temporary certificates shall be exchangeable for definitive share certificates representing the Spectrum Shares upon the delivery by each Vendor on or after the date which is 40 days from the Closing Date
Appears in 1 contract
Sources: Share Purchase Agreement (Spectrum Signal Processing Inc)
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:
(a) The Vendor is a corporation existing under the laws of the State of DelawareCanada;
(b) The Vendor is the legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) Other than the Subject Shares, neither the Vendor nor any of its Affiliates own or exercise investment authority over any securities of the Corporation or any of its subsidiaries or any securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of the Corporation or its subsidiaries.
(d) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(de) The Vendor is authorized to sell and transfer to the Purchaser the full legal and beneficial ownership of the Subject Shares on the terms of this Agreement without the consent of any third party.
(f) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(eg) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(fh) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(gi) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares, other than the proxy granted to the Purchaser as contemplated under the terms of this Agreement.
(hj) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational documents or by-laws of the Vendor;
(ii) any contract (written or oral) or other instrument to which the Vendor is a party or by which the Vendor is bound; or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.
(ik) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(jm) The Vendor is knowledgeable of, or has been independently advised as to, the applicable securities laws of the jurisdiction which would apply to this subscription, if any.
(n) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under the applicable securities legislation or of any applicable jurisdiction or, if such is not applicable, the Vendor is permitted to purchase and hold the Consideration Shares on behalf of under the Accounts under applicable securities laws of such jurisdiction without the need to rely on exemptions.
(ko) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislationlegislation and regulatory policy, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(lp) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that Purchaser, which has been prepared for delivery to and reviewed by it prospective purchasers in order to assist it them in making an investment decision in respect of the Consideration Shares.
(mq) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the The Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(nr) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(ou) The Vendor will not resell any of the Consideration Shares except in accordance with the provisions of applicable securities legislation legislation, securities regulatory policy, and stock exchange rules.; which, for example, during the four month period contemplated in Section 7(w) could include trades to “accredited investors” in compliance with section 2.3 of National Instrument 45-106 Prospectus and Registration Exemptions;
(pv) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only as principal for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accountsany other person, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor it is an “accredited investor” as defined in section 1.1 of NI National Instrument 45-106106 Prospectus and Registration Exemptions, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI National Instrument 45-106 Prospectus and Registration Exemptions (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(vw) The Vendor acknowledges that the Consideration Shares that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing Date (or earlier pursuant to a transaction completed under the prospectus contemplated in Section 9), the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(ux) The Vendor acknowledges and consents to the Purchaser collecting personal information relating to the Vendor for the purpose of completing this Agreement. The Vendor acknowledges and consents to the Purchaser retaining such personal information for as long as permitted or required by law or business practices. The Vendor further acknowledges and consents to the fact that the Purchaser may be required by Canadian securities laws, the rules and policies of the Toronto Stock Exchange or of any applicable stock exchange to provide regulatory authorities with any personal information provided by the Vendor in this Agreement. Specifically, such consent shall extend to the collection, use and disclosure of personal information by the Toronto Stock Exchange for the following purposes, or as otherwise described or identified by the Toronto Stock Exchange from time to time:
(i) to conduct background checks;
(ii) to verify the personal information that has been provided about each individual;
(iii) to consider the suitability of the individual to act as an officer, director, insider, promoter, investor relations provider or, as applicable, an employee or consultant, of the Purchaser or the applicant;
(iv) to consider the eligibility of the Purchaser or the applicant to list on the Toronto Stock Exchange;
(v) to provide disclosure to market participants as to the security holdings of directors, officers, other insiders and promoters of the Purchaser, or its associates or affiliates;
(vi) to conduct enforcement proceedings; and
(vii) to perform other investigations as required by and to ensure compliance with all applicable rules, policies, rulings and regulations of the Toronto Stock Exchange, securities legislation and other legal and regulatory requirements governing the conduct and protection of the public markets in Canada.
(y) The Vendor has been advised that the Toronto Stock Exchange also collects additional personal information from other sources, including but not limited to, securities regulatory authorities in Canada or elsewhere, investigative, law enforcement or self-regulatory organizations, regulations services providers and each of their subsidiaries, affiliates, regulators and authorized agents, to ensure that the purposes set out above can be accomplished. The personal information the Toronto Stock Exchange collects may also be disclosed to such agencies and organizations, or as otherwise permitted or required by law, and they may use it in their own investigations for the purposes described above and may also be disclosed on the website of the Toronto Stock Exchange or through printed materials published by or pursuant to the directions of the Toronto Stock Exchange. The Toronto Stock Exchange may from time to time use third parties to process information and/or provide other administrative services and in this regard, may share the information with such third party service providers. The Vendor represents and warrants that the Vendor has the authority to provide the consents and acknowledgements set out in this paragraph on behalf of each beneficial purchaser for whom the Vendor is contracting hereunder.
(z) If the Vendor is resident, or, if not an individual, has its head office, in the Province of Ontario, the Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 7 will survive the Closing.
Appears in 1 contract
Vendor’s Representations and Warranties. (1) The Vendor represents and warrants to the Purchaser that, except as disclosed in the Disclosure Letter:
(a) The the Vendor is a corporation existing under the laws beneficial and registered owner of the State of DelawareShares;
(b) The Vendor is the legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver and perform its obligations under this Agreement and the Vendor has the power, authority and right to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.;
(dc) The the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(e) This Vendor and this Agreement has been duly executed and delivered by, and constitutes a valid and legally binding obligation of of, the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to general principles of equity and to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ ' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.;
(fd) There there is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.;
(ge) There is no outstanding voting trust, proxy or other similar agreement with respect to neither the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation or breach of:
(i) any of the provisions of the organizational constating documents or by-laws of the Vendor;; or
(ii) any contract (written or oral) or other instrument Contract to which the Vendor is a party or by which the Vendor is bound; orexcept where such violation would not have a material adverse effect on the ability of the Vendor to perform its obligations hereunder;
(iiif) no approval, order, consent of or filing with any law, statute, rule, regulation, Governmental Entity is required in connection with the execution and delivery by the Vendor of this Agreement or any existing applicable decree, judgment, other documents and agreements to be delivered under this Agreement or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect the performance of which the obligations of the Vendor must comply.under this Agreement or any other documents and agreements to be delivered under this Agreement except where the failure to obtain such approval, order or consent or make such filing would not have a material adverse effect on the Vendor or its ability to carry out its obligations hereunder;
(g) the Vendor is not a non-resident person within the meaning of section 116 of the Income Tax Act (Canada);
(h) the Corporation is a corporation duly incorporated and validly subsisting under the laws of Nova Scotia, with the corporate power to own its assets;
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning authorized share capital of the Common Corporation consists of 100,000 common shares of which only the Shares or the Corporation.are issued and outstanding;
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.Corporation has no liabilities;
(k) The Vendor understands that the Vendor may not be able to resell Corporation has carried on no business other than the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, acquisition and that holding of the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.Fundata Shares;
(l) The Vendor has not received or been provided with any offering memorandumthe Corporation will, or any other document (other than annual financial statementsat Closing, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) be the content of which is prescribed by statute or regulation legal and which has been publicly filed on SEDAR) describing the business and affairs beneficial owner of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Fundata Shares.;
(m) With there is no contract, option or similar obligation binding upon the exception Corporation to: (i) issue any unissued Equity Securities, or (ii) repurchase, redeem or otherwise acquire any Equity Securities of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.Corporation;
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any knowledge of the Consideration SharesVendor, that any person will refund Fundata is a corporation duly incorporated and validly subsisting under the purchase price laws of any of Ontario, with the Consideration Shares or as corporate power to the future price or value of the Consideration Shares.own its assets and carry on its businesses;
(o) The Vendor will not resell any to the knowledge of the Consideration Shares except in accordance with applicable securities legislation Vendor, the authorized share capital of Fundata consists of an unlimited number of common shares, of which 124 common shares are issued and stock exchange rules.outstanding;
(p) The Vendor is an institutional “accredited investor” that satisfies one or more to the knowledge of the criteria set forth in Rule 501(a)(1)Vendor, there is no contract, option or similar obligation binding upon Fundata to: (2), (3i) issue any unissued Equity Securities; or (7ii) repurchase, redeem or otherwise acquire any Equity Securities of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.Fundata;
(q) The Vendor to the knowledge of the Vendor, the business of Fundata has been carried on in the Ordinary Course in all material respects since September 30, 2005 and, to the knowledge of the Vendor, Fundata has not become aware entered into any material transaction out of the Ordinary Course since that date;
(r) to the knowledge of the Vendor, Fundata is not a party to or bound by any advertisement in printed media of general and regular paid circulation guarantee, support, indemnification, surety or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature similar obligation with respect to the distribution obligations or indebtedness of any other Person that is material;
(s) to the knowledge of the Consideration Shares and Vendor, Fundata has no outstanding bonds, debentures, notes or mortgages maturing more than one year after the Vendor has not purchased the Consideration Shares as date of their original issuance in a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).material amount;
(rt) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under to the 1933 Act or the securities laws of any state knowledge of the United StatesVendor, and willFundata is not currently indebted, thereforein any material amount, be “restricted securities” to any officer, director, employee or shareholder of Fundata or any other person with whom Fundata does not deal at arm's length (within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser ITA) other than for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, usual compensation paid in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).Ordinary Course;
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) the knowledge of the definition Vendor, Fundata does not have any agreement, option or commitment to acquire any Equity Securities of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).any Person or to acquire or lease any business, operations, real property or assets which assets would be material to Fundata;
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) knowledge of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected lease for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted premises occupied by Fundata at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ is currently in good standing and Fundata has not been notified in writing of any event of default thereunder;
(w) to the knowledge of the Vendor, there is no agreement or commitment in writing for the purchase from Fundata of any of its material assets other than in the Ordinary Course;
(x) to the knowledge of the Vendor, Fundata is not a party to any court proceeding arising as a result of, or in relation to, the investigation of the Special Committee of the board of directors of ▇▇▇▇▇▇▇▇▇ International and, to the knowledge of the Vendor, there are no facts or circumstances that would be reasonably likely to result in Fundata becoming involved in any court action or proceeding, as a defendant, related to the matters raised in the report of the Special Committee of the board of directors of ▇▇▇▇▇▇▇▇▇ International;
(y) to the knowledge of the Vendor, the unaudited consolidated financial statements of Fundata, consisting of a balance sheet as at September 30, 2005 and a statement of operations for the nine months ended September 30, 2005, which are set out in Schedule 3.01(1)(y), do not contain any material misstatements;
(z) for the past five years, to the knowledge of the Vendor, Fundata has filed or caused to be filed, within the times and in the manner prescribed by Applicable Law, all federal and provincial income tax returns which are required to be filed by it and, to the knowledge of the Vendor, such tax returns do not contain any material misstatement;
(aa) to the knowledge of the Vendor, there has been no material adverse change in the financial condition of Fundata since December 31, 2002; and
(bb) to the knowledge of the Vendor, there is no existing litigation in the United States against Fundata.
(2) ▇▇▇▇▇▇▇▇▇ International represents and warrants to the Purchaser that, except as disclosed in the Disclosure Letter:
(a) ▇▇▇▇▇▇▇▇▇ International is incorporated, organized and existing under the laws of the jurisdiction of its incorporation, and ▇▇▇▇▇▇▇▇▇ International has good and sufficient power, authority and right to enter into and deliver this Agreement;
(b) this Agreement has been duly authorized, executed and delivered by, and constitutes a valid and legally binding obligation of, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (International, enforceable against ▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about International in accordance with its terms subject to general principles of equity and to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the OSC’s indirect collection enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the Vendor Informationcourt;
(c) neither the entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by ▇▇▇▇▇▇▇▇▇ International will result in the violation of:
(i) any of the provisions of the constating documents or by-laws of ▇▇▇▇▇▇▇▇▇ International; or
(ii) any Contract to which ▇▇▇▇▇▇▇▇▇ International is a party or is bound; except where such violation would not have a material adverse effect on the ability of ▇▇▇▇▇▇▇▇▇ International to carry out its obligations hereunder; and
(vd) no approval, order, consent of or filing with any Governmental Entity is required in connection with the Vendor authorizes execution and delivery by ▇▇▇▇▇▇▇▇▇ International of this Agreement or any other documents and agreements to be delivered under this Agreement or the indirect collection performance of the Vendor Information by obligations of ▇▇▇▇▇▇▇▇▇ International under this Agreement or any other documents and agreements to be delivered under this Agreement except where the OSC. The representations and warranties failure to obtain such approval, order or consent or make such filing would not have a material adverse effect on the ability of the Vendor set forth in this Section 6 will survive the Closing▇▇▇▇▇▇▇▇▇ International to carry out its obligations hereunder.
Appears in 1 contract
Sources: Share Purchase Agreement (Hollinger International Inc)
Vendor’s Representations and Warranties. The Vendor severally represents and warrants to the Purchaser thatas follows, as to the Vendor and the Vendor's Subject Shares, only, and acknowledges and confirms that the Purchaser is relying upon such representations and warranties in connection with the acquisition of the Subject Shares, all of which are material to the Purchaser in entering into this Agreement:
(a) The Vendor is a corporation existing under a. the laws of the State of Delaware;
(b) The Vendor is the legal, registered and the Accounts are the beneficial, beneficial owner of the SubjectShares. The Vendor has the exclusive right to sell, assign and transfer such Subject Shares as provided in this Agreement free and clear of all liensany Encumbrances except for the restrictions, chargesif any, encumbrancescontained in securities Laws and the Corporation's articles, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of preby-emption, laws and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership constating documents. Upon Closing of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Pricetransactions contemplated by this Agreement, the Purchaser will acquire good be the sole registered and valid title to beneficial owner of the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery except for the restrictions, if any, contained in securities Laws and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(e) This Agreement constitutes a valid and legally binding obligation of the VendorCorporation's articles, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization by-laws and other laws of general application limiting constating documents;
b. except for the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
Purchaser's right under this Agreement, no Person has any agreement or commitment (f) There is no contractwritten or verbal), option or any other right or privilege capable of another party binding upon becoming an agreement or which at any time in commitment for the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose acquisition of or encumber any of the Subject Shares other than pursuant to from the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion Vendor and upon consummation of the transactions contemplated hereby by herein the Vendor will result in Purchaser shall acquire the violation of:
(i) Subject Shares free and clear of any of the provisions of the organizational documents rights, interest or by-laws claim of the Vendor;
(ii) c. the Vendor is not a non-resident of Canada within the meaning of the Tax Act;
d. no notices, consents, authorizations, licenses, permits, approvals or orders of any contract (written person are required to permit the Vendor to participate in this Agreement; and
e. neither the entering into and the delivery of this Agreement, nor the Vendor's participation in the Closing to which these representations and warranties relate, will result in the breach, violation or oral) acceleration of:
i. any agreement or other instrument to which the Vendor is a party or by which the Vendor is bound; or
(iii) ii. any law, statute, rule, regulation, order or judgment of any Governmental Authority or any existing applicable decreelaw;
f. this Agreement, judgmentand as of the Closing Time, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect each of the Ancillary Agreements to which the Vendor must comply.is a party in connection with the Acquisition have been duly executed and delivered by the Vendor, and each such agreement constitutes a legal, valid and binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject only to any limitation under Laws relating to:
(i) i. bankruptcy, winding-up, insolvency, arrangement and other laws of general application affecting the enforcement of creditors' rights; and
ii. the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunctive relief;
g. the Vendor is an individual resident of Canada. The Vendor has not disclosed good and sufficient right and authority to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted enter into all agreements and transactions to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or which the Vendor is permitted a party in connection with the Acquisition and to purchase perform all obligations under such agreements and hold transactions;
h. the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received retained any broker or been provided with finder or incurred any offering memorandumliabilities or obligations to pay any fees, commissions or other similar forms of compensation to any broker, finder, financial advisor, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature agent with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act)Acquisition.
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Sources: Share Purchase Agreement (Thermon Group Holdings, Inc.)
Vendor’s Representations and Warranties. 7.1 The Vendor represents and warrants to the Purchaser that:
(a) The on the Closing Date the Shares shall be beneficially owned by the Vendor is a corporation existing under free and clear of all restrictions, options, liens, charges and encumbrances, whatsoever, excepting those restrictions set forth in the laws articles of continuance (as amended) of the State Corporation, the restrictions set forth in the Shareholders Agreement respecting the issued and outstanding shares in the capital of Delawarethe Corporation and the restrictions set forth in the Amended and Restated Option Agreement dated August 1, 1999, to which the Corporation and the Vendor are parties;
(b) The no person, firm or corporation has any written or verbal agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement for the purchase of the Shares from the Vendor is other than as set out in this Agreement, in the legalarticles of continuance (as amended) of the Corporation, in the Shareholders Agreement respecting the issued and outstanding shares in the capital of the Corporation and in the Amended and Restated Option Agreement dated August 1, 1999 to which the Corporation and the Accounts Vendor are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).parties;
(c) The on the Closing Date the Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer shall not be a non-resident of Canada within the legal and beneficial title and ownership meaning of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances Act; and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part requisite approvals of the Vendor.
(e) This Agreement constitutes a valid Corporation and legally binding obligation its directors and shareholders, as applicable, have been obtained so as to permit the transfer of the Vendor, enforceable against shares from the Vendor to the Purchaser in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the courtterms hereof.
(f) There is no contract, option or any other right of another party binding upon or which at any time 7.2 The representations and warranties contained in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor section 7.1 shall survive the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational documents or by-laws of the Vendor;
(ii) any contract (written or oral) or other instrument to which the Vendor is a party or by which the Vendor is bound; or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made and shall continue in reliance upon an exemption from registration available to the Purchaser for offers full force and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with Purchaser; provided always that no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information claim with respect to the Vendor’s full name, residential address (or head office) representations and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon warranties shall be made by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that unless written notice shall have been given to the Vendor Information is being collected indirectly by within one (1) year from the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the ClosingClosing Date.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:
(a) The Vendor is a corporation existing trust formed under the laws of the State of Delaware;
(b) The Vendor is the legal, legal and the Accounts are the beneficial, beneficial owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) Other than the Subject Shares, neither the Vendor nor any of its Affiliates own or exercise investment authority over any securities of the Corporation or any of its subsidiaries or any securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of the Corporation or its subsidiaries.
(d) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(de) The Vendor is authorized to sell and transfer to the Purchaser the full legal and beneficial ownership of the Subject Shares on the terms of this Agreement without the consent of any third party.
(f) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(eg) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(fh) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(gi) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares, other than the proxy granted to the Purchaser as contemplated under the terms of this Agreement.
(hj) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational documents or by-laws of the Vendor;
(ii) any contract (written or oral) or other instrument to which the Vendor is a party or by which the Vendor is bound; or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.
(ik) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(jm) The Vendor is knowledgeable of, or has been independently advised as to, the applicable securities laws of the jurisdiction which would apply to this subscription, if any.
(n) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under the applicable securities legislation or of any applicable jurisdiction or, if such is not applicable, the Vendor is permitted to purchase and hold the Consideration Shares on behalf of under the Accounts under applicable securities laws of such jurisdiction without the need to rely on exemptions.
(ko) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislationlegislation and regulatory policy, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(lp) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that Purchaser, which has been prepared for delivery to and reviewed by it prospective purchasers in order to assist it them in making an investment decision in respect of the Consideration Shares.
(mq) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the The Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(nr) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(ou) The Vendor will not resell any of the Consideration Shares except in accordance with the provisions of applicable securities legislation legislation, securities regulatory policy, and stock exchange rules.
(pv) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(qw) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(rx) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(sy) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.. ” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A B (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(tz) The Vendor Purchaser is acquiring the Consideration Shares for the benefit of the Accountsits own account for investment, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor Purchaser was not created or used solely to purchase or hold the Consideration Shares. The Vendor Purchaser is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(uaa) The Vendor is purchasing the Consideration Shares as principal for its own account and not for the benefit of any other person, it is an “accredited investor” as defined in section 1.1 of NI National Instrument 45-106106 Prospectus and Registration Exemptions, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI National Instrument 45-106 Prospectus and Registration Exemptions (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(vbb) The Vendor acknowledges that the Consideration Shares that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing Date the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(ucc) The Vendor acknowledges and consents to the Purchaser collecting personal information relating to the Vendor for the purpose of completing this Agreement. The Vendor acknowledges and consents to the Purchaser retaining such personal information for as long as permitted or required by law or business practices. The Vendor further acknowledges and consents to the fact that the Purchaser may be required by Canadian securities laws, the rules and policies of the Toronto Stock Exchange or of any applicable stock exchange to provide regulatory authorities with any personal information provided by the Vendor in this Agreement. Specifically, such consent shall extend to the collection, use and disclosure of personal information by the Toronto Stock Exchange for the following purposes, or as otherwise described or identified by the Toronto Stock Exchange from time to time:
(i) to conduct background checks;
(ii) to verify the personal information that has been provided about each individual;
(iii) to consider the suitability of the individual to act as an officer, director, insider, promoter, investor relations provider or, as applicable, an employee or consultant, of the Purchaser or the applicant;
(iv) to consider the eligibility of the Purchaser or the applicant to list on the Toronto Stock Exchange;
(v) to provide disclosure to market participants as to the security holdings of directors, officers, other insiders and promoters of the Purchaser, or its associates or affiliates;
(vi) to conduct enforcement proceedings; and
(vii) to perform other investigations as required by and to ensure compliance with all applicable rules, policies, rulings and regulations of the Toronto Stock Exchange, securities legislation and other legal and regulatory requirements governing the conduct and protection of the public markets in Canada.
(dd) The Vendor has been advised that the Toronto Stock Exchange also collects additional personal information from other sources, including but not limited to, securities regulatory authorities in Canada or elsewhere, investigative, law enforcement or self-regulatory organizations, regulations services providers and each of their subsidiaries, affiliates, regulators and authorized agents, to ensure that the purposes set out above can be accomplished. The personal information the Toronto Stock Exchange collects may also be disclosed to such agencies and organizations, or as otherwise permitted or required by law, and they may use it in their own investigations for the purposes described above and may also be disclosed on the website of the Toronto Stock Exchange or through printed materials published by or pursuant to the directions of the Toronto Stock Exchange. The Toronto Stock Exchange may from time to time use third parties to process information and/or provide other administrative services and in this regard, may share the information with such third party service providers. The Vendor represents and warrants that the Vendor has the authority to provide the consents and acknowledgements set out in this paragraph on behalf of each beneficial purchaser for whom the Vendor is contracting hereunder.
(ee) If the Vendor is resident, or, if not an individual, has its head office, in the Province of Ontario, the Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:
(a) The Vendor is a corporation duly incorporated, organized and validly existing under the laws of the State of Delaware;Tennessee with the corporate power to own its assets and to carry on its business.
(b) The Vendor is has the legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and each of the Ancillary Agreements and, subject to the receipt of the Regulatory Approvals and the Permitted Encumbrances, to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts Assets to the Purchaser free and clear of all Encumbrances andliens, upon payment charges, encumbrances and any other rights of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrancesothers.
(dc) The executionSubject to receipt of the Regulatory Approvals, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on constitutes and, at the part Time of the Vendor.
(e) This Closing, each Ancillary Agreement constitutes will constitute a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(fd) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares Assets other than pursuant to the provisions of this AgreementAgreement or the Ancillary Agreements or pursuant to purchases and sales of investment assets in the usual and ordinary course of the Purchased Business.
(ge) There is no outstanding voting trust, proxy or other similar agreement with respect Subject to the voting receipt of the Subject Shares.
(h) To the Vendor’s knowledgeRegulatory Approvals, neither the entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational constating documents or by-laws of the Vendor;,
(ii) any contract (written or oral) agreement or other instrument to which the Vendor is a party or by which the Vendor is bound; , or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Applicable Law”), in respect of which the Vendor must comply.
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents hereby represents, warrants and warrants covenants to and with the Purchaser that:
(a) Corporate Standing of the Vendor The Vendor is a corporation existing company duly organized -------------------------------- and validly subsisting under the laws of the State Isle of DelawareMan and is duly qualified to do business as a corporation under the laws of Benin;
(b) The Vendor is the legal, and the Accounts are the beneficial, owner Requisite Authority of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others Vendor (collectively, “Encumbrances”).
(ci) The the Vendor has good all requisite ------------------------------------- corporate power and sufficient power, authority and right to enter into and deliver this Agreement and to transfer perform its obligations hereunder and (ii) the legal execution and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery and performance of this Agreement has and the consummation of the transaction contemplated herein by the Vendor have been duly authorized by all necessary corporate action on the part of the Vendor.;
(ec) This Agreement constitutes a valid No Conflicts The execution and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor and the completion ------------- consummation of the transactions transaction contemplated hereby herein by the Vendor will result not violate nor be in the violation of:
(i) conflict with, or constitute a material default under, any material provision of the provisions of the organizational documents any agreement or by-laws of the Vendor;
(ii) any contract (written or oral) or other instrument to which the Vendor is a party or by which the Vendor is bound; , or
(iii) , so far as it is aware, any judgment, decree, order, law, statute, rule, licence, regulation, ordinance or any existing other law applicable decreeto the Vendor;
(d) Execution of Documents (i) this Agreement has been duly executed and ------------------------ delivered by the Vendor and all other documents executed and delivered by the Vendor pursuant hereto shall have been duly executed and delivered by the Vendor and (ii) this Agreement does and such documents will, judgmentconstitute legal, valid and binding obligations of the Vendor enforceable in accordance with their respective terms;
(e) No Default under Laws The Purchaser has not received any notice of and ---------------------- so far as it is aware is not in, default or order violation of any order, rule, regulation, writ, injunction or decree of any court or governmental authority or any statute to the extent that any such default or violation would materially and adversely affect the operation or ownership of any of the Assets;
(f) Title to Assets (i) the Vendor has not done any act or thing whereby ----------------- any of the Assets have been or will be sold or otherwise alienated and (ii) the Assets are or will at Closing be free and clear of all liens, charges, encumbrances, royalties, burdens, production payments, profits interests and adverse claims whatsoever created by, through or under the Vendor;
(g) Quiet Enjoyment Subject to the rents, covenants, conditions and ---------------- stipulations in the Contracts and all other agreements pertaining to the Assets, and on the Vendor's part thereunder to be paid, performed and observed, if Closing occurs (i) the Purchaser may continue to hold and enjoy the Assets, for the residue of their respective terms and all renewals or extensions thereof, for the Purchaser's own use and benefit without any interruption of or by the Vendor or any courtother person whomsoever claiming or to claim by, administrative agencythrough or under the Vendor and (ii) the Vendor binds itself to warrant and defend all and singular the Assets, against all persons whomsoever claiming or other governmental body to claim the same or any part thereof or any interest therein by, through or under the Vendor;
(collectivelyh) Judgments, “Law”), in respect of Lawsuits or Claims There are no material judgments -------------------------------- unsatisfied against the Vendor or any material consent decrees or injunctions to which the Vendor must comply.is subject and there are no material proceedings, actions or lawsuits in existence, or so far as the Vendor is aware, threatened or asserted, against the Vendor with respect to any of the Assets;
(i) The Shares (i) the Vendor has not disclosed or will have at the Time of Closing good, ------ marketable, beneficial and recorded title to the Shares purported to be owned by the Vendor, and such Shares are free of all mortgages, charges, liens, pledges, claims, security interests and agreements and other encumbrances of whatsoever nature and no person, firm or corporation has any agreement or option or right capable of becoming an agreement or option for the purchase from the Vendor of any of the Shares except as provided herein, and the Vendor has good right, full power and absolute authority to sell and assign its Shares to the Purchaser for the purpose and in the manner as provided in this Agreement. Such Shares are not subject to any confidential shareholder, pooling, escrow or materialsimilar agreements; (ii) no consents of, non-public information concerning filings with or approval or any governmental or regulatory body authority is required by the Common Vendor for its sale and transfer of its Shares to the Purchaser, except as contemplated herein; and (iii) the Vendor is not obligated to obtain the written consent of any person to the transaction contemplated by this Agreement other than from those persons from whom consent has, or prior to the CorporationTime of Closing, will be obtained.
(j) The Vendor is permitted to purchase Due Incorporation and hold the Consideration Shares on behalf Capitalization of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.Addax S.A.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:
(a1) The the Vendor is a corporation existing incorporated, organized and subsisting under the laws of the State Province of Delaware;
(b) The Vendor is the legalNova Scotia, and has the Accounts are the beneficial, owner of the Subject Shares free corporate power and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver perform its obligations under this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) Agreement. The execution, delivery and performance by the Vendor of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.;
(e2) This the Vendor is the sole beneficial, legal and registered owner of the Shares with a good title, free and clear of all Liens. Upon completion of the transaction contemplated by this Agreement, the Vendor will have transferred to the Purchaser good and valid title to the Shares owned by the Vendor, free and clear of all Liens;
(3) The execution, delivery and performance by the Vendor of this Agreement (i) does not (and will not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a breach or a violation of, or conflict with, or allow any other person to exercise any rights under, any contracts or instruments to which the Vendor is a party or pursuant to which any of its assets or property may be affected, and (ii) will not result in the violation of any law, or require the Vendor to make any filing with, give any notice to, or obtain any authorization of, any governmental entity;
(4) except for the Purchaser’s right under this Agreement, no person has any written or oral agreement, option or warrant or any right or privilege (whether by law, pre-emptive or contractual granted by the Vendor) capable of becoming such for the purchase or acquisition from the Vendor of any of the Shares;
(5) the Vendor is not a non-resident of Canada for purposes of the Income Tax Act (Canada);
(6) the Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement; and
(7) this Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization bankruptcy and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational documents or by-laws of the Vendor;
(ii) any contract (written or oral) or other instrument to which the Vendor is a party or by which the Vendor is bound; or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Vendor’s Representations and Warranties. The 5.01 Every covenant, representation, or warranty of the Vendors contained herein will be their several (and not joint) covenant, representation, or warranty.
5.02 In order to induce the Purchaser to enter into and consummate this Agreement, each Vendor hereby represents and warrants to the Purchaser, and acknowledges that the Purchaser thatis relying upon such representations and warranties in connection with the purchase of the Vendors’ Shares, as follows:
(a) The Vendor is a corporation existing under except for the laws of 0934221 Interest, the State of Delaware;
(b) The Vendor is the legal, registered and the Accounts are the beneficial, beneficial owner of that number of Common Shares shown against the Subject Shares Vendor’s name in Schedule “A” hereto, free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, charges and any other rights of others (collectively, “Encumbrances”).Encumbrances whatsoever;
(cb) The the Vendor has good due and sufficient power, right and authority and right to enter into and deliver this Agreement on the terms and conditions herein set forth and to transfer the legal registered and beneficial title and ownership of his Vendors’ Shares to the Subject Shares on behalf Purchaser;
(c) the execution and delivery of this Agreement and the completion of the Accounts transaction contemplated hereby have been duly and validly authorized by all necessary action on the part of the Vendor, and this Agreement constitutes a legal, valid and binding obligation of the Vendor enforceable against the Vendor in accordance with its terms subject however to limitations with respect to enforcement imposed by law in connection with bankruptcy or similar proceedings and to the Purchaser free extent that equitable remedies such as specific performance and clear of all Encumbrances and, upon payment injunction are in the discretion of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.court from which they are sought;
(d) The the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation ofnot:
(i) violate any of the provisions of the organizational documents or by-laws of the Vendor;
(ii) any contract (written or oral) or other instrument agreement to which the Vendor is a party or by which it is bound, and will not give any Person or company any right to terminate or cancel any agreement or any right enjoyed by the Vendor is bound; orwith respect to his Vendors’ Shares,
(ii) result in the creation or imposition of any lien, Encumbrance or restriction of any nature whatsoever in favour of a third party upon or against his Vendors’ Shares, and
(iii) violate any law, statuteregulation or applicable order of any court, rulearbitrator or governmental authority, regulationor, if applicable, conflict with or result in a breach of the Vendor’s charter documents, as applicable, or the resolutions of the Vendor’s directors or shareholders, as applicable;
(e) no Person, firm or corporation other than the Purchaser has any agreement or option or a right capable of becoming an agreement for the purchase of the Vendors’ Shares, or any existing applicable decreeright capable of becoming an agreement for the purchase, judgmentsubscription or issuance of any of the unissued shares in the capital of the Company;
(f) each Vendor is a non-resident of Canada within the meaning of the Income Tax Act (Canada) (“ITA”);
(g) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding, pending, or order to the knowledge of the Vendor, threatened against or affecting the Vendors’ Shares at law or in equity or before or by any courtgovernmental authority, administrative commission, board, bureau or agency, or other governmental body ;
(collectively, “Law”), in respect of which h) neither the Vendor must comply.nor any company controlled by the Vendor owns any property or assets which are used by the Company or are necessary or useful in the conduct of its Business;
(i) The Vendor has not disclosed to Each of the Purchaser any confidential or material, non-public information concerning the Common Shares Vendors is a resident of a country other than Canada or the Corporation.United States (as defined in Regulation S promulgated under the Securities Act of 1933) (an “International Jurisdiction”) or will complete the accredited investor questionnaire attached hereto as Schedule “G”;
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf each of the Accounts Vendors is knowledgeable of, or has been independently advised as to, the securities Laws having applications to the Vendors and all regulatory notices, orders, rules, regulations, policies and other instruments incidental thereto (“International Securities Laws”) which would apply to the issuance of the Purchaser Shares;
(k) each of the Vendors is acquiring the Purchaser Shares pursuant to exemptions an applicable exemption from any prospectus, financial promotion registration or registration similar requirements under applicable securities legislation or the Vendor International Securities Laws of that International Jurisdiction, or, if such is not applicable, is permitted to purchase and hold acquire the Consideration Purchaser Shares on behalf under the International Securities Laws of the Accounts under applicable securities laws International Jurisdiction without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.;
(l) The the acquisition of the Purchaser Shares by each of the Vendors does not contravene any of the International Securities Laws applicable to such the Vendor has and the Purchaser and does not received give rise to any obligation of the Purchaser to prepare and file a prospectus or been provided similar document or to register the Purchaser Shares or to be registered with any offering memorandum, governmental or regulatory authority;
(m) the International Securities Laws do not require the Purchaser to make any other document filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in the International Jurisdiction with respect to such share issuances;
(other than annual financial statements, interim financial statements n) each of the Vendors hereby certifies that he is not resident in British Columbia;
(o) no securities commission or any other document similar regulatory authority has reviewed or passed on the merits of the securities;
(excluding offering memoranda, prospectuses p) there is no government or other offering documentsinsurance covering the securities;
(q) there are risks associated with the purchase of the securities;
(r) there are restrictions on the purchaser’s ability to resell the securities and it is the responsibility of the purchaser to find out what those restrictions are and to comply with them before selling the securities;
(s) the content Purchaser has advised the Vendors that the Purchaser is relying on an exemption from the requirements to provide the Vendors with a prospectus under the British Columbia Securities Act and, as a consequence of which is prescribed acquiring securities pursuant to this exemption, certain protections, rights and remedies provided by statute the British Columbia Securities Act, including statutory rights of rescission or regulation damages, will not be available to the Vendors; and
(t) the Vendors covenant and which has been publicly filed on SEDAR) describing the business represent and affairs warrant in favour of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception all of the representations and warranties set forth herein shall be true and correct at the Time of Closing as if made on that date.
5.03 Notwithstanding any investigations or enquiries made by the Purchaser prior to the Closing Date or the waiver of any condition by the Purchaser, the representations, warranties, covenants and agreements of the Purchaser set out in Section 7 Vendors shall survive the Closing Date by a period of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser 12 months and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance closing of the purchase of the Consideration Shares occurred outside of Canada (except and sale herein provided for, shall continue in Ontario)full force and effect.
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Sources: Share Purchase Agreement
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:
(a) The Vendor is a corporation existing under subject to anything listed in Article 2.3, there are no unregistered agreements with any third party affecting the laws Lands, including leases, rights of the State of Delawarefirst refusal, and options to purchase;
(b) The Vendor is the legalall municipal taxes, local improvements, special easements, and the Accounts are the beneficialall other similar taxes, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emptionassessments, and any other rights of others charges levied against or pertaining to the Lands which have accrued prior to the Closing Date will be in good standing (collectively, “Encumbrances”the Vendor’s lawyer is permitted to use the Sale Proceeds to ensure this representation and warranty is correct).;
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part Knowledge of the Vendor.
(e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of there are no Legal Proceedings or Claims commenced against the provisions of Vendor which may affect the organizational documents or by-laws of the VendorLands;
(ii) there have been no applications made under any contract applicable bankruptcy and insolvency laws against the Vendor, nor are there any proceedings, whether pending or threatened against the Vendor, either in the courts or by any Governmental Authority, which may affect the Lands;
(written d) it has and will have good and marketable Title to the Lands and is entitled at law and in equity to transfer clear Title to the Purchaser pursuant to the terms of this Agreement;
(e) the Closing of the transactions contemplated by this Agreement will not:
(i) violate the provisions of any agreement or oral) or other instrument to which the Vendor it is a party or by which the Vendor it is bound; or
(iii) , or of any judgment, law, decree, order, statute, rule, regulation, or any existing regulation applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.to it; or
(iii) The Vendor has not disclosed to result in the Purchaser creation or imposition of any confidential or material, non-public information concerning Encumbrance on the Common Shares or the Corporation.Lands;
(jf) The Vendor it is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price breach of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature contract with respect to the distribution of the Consideration Shares and the Vendor has Lands;
(g) it is not purchased the Consideration Shares as a result in breach of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of obligation to any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information third party with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);Lands; and
(iih) that it is not now, nor will it be on the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws Closing Date, a non-resident of Ontario;
(iii) that the Vendor Information is being collected Canada for the purposes of the administration and enforcement Section 116 of the Securities Laws Income Tax Act (Canada), nor is it an agent or a trustee for any person with an interest in the Lands who in a non-resident of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the ClosingCanada.
Appears in 1 contract
Sources: Agricultural Land Purchase Agreement
Vendor’s Representations and Warranties. The To induce the Purchaser to enter into and complete the Transaction, and acknowledging and agreeing that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions of this Agreement, the Vendor hereby represents and warrants to warrants, as representations and warranties that are true and correct as at the Purchaser Effective Date and will be true and correct on the Closing Date that:
(a) The Vendor the Vendor:
(i) is a corporation company duly organized, validly existing and in good standing under the laws Corporations Act; and
(ii) subject to receipt of Regulatory Approvals, it has the full power, authority, right and capacity to dispose of the State Property and, subject to receipt of Delawarethe Vendor Shareholder Approval, to complete the Distribution, to execute and deliver this Agreement, to complete the Transaction and to duly observe and perform all of its covenants and obligations herein set forth;
(b) The Vendor is the Transaction Agreements have been duly and validly executed and delivered by it and constitute legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(e) This Agreement constitutes a valid and legally binding obligation obligations of the Vendor, duly enforceable against the Vendor in accordance with its their terms;
(c) neither the execution nor the delivery of the Transaction Agreements, or the other agreements and instruments contemplated hereby or thereby, nor the completion of the Transaction will:
(i) constitute or result in the breach of or default under any terms, subject provisions or conditions of, or conflict with, violate or cause any, or give to any Person, any right of, after the giving of a notice or lapse of time or otherwise, acceleration, termination or cancellation in or with respect to any of the following:
(A) any of its constating documents or any resolution of its directors or the Vendor Shareholders;
(B) any applicable bankruptcyLaw; and
(C) any agreement, insolvencyor other instrument or commitment to which it is a party or is subject, reorganization or
(ii) result in the creation of any Encumbrance on the Property;
(d) no consent, approval, order, registration, notice, declaration or filing with, any Governmental Entity or other Person is required to be obtained by the Vendor in connection with the execution and delivery of the Transaction Agreements or any of the other laws documents contemplated hereby, or the consummation by the Vendor of general application limiting the enforcement transactions contemplated hereby or thereby, other than:
(i) the written consent of creditors’ rights generally and the Glenfine Owners pursuant to the fact that specific performance is an equitable remedy available only in Glenfine Agreement;
(ii) the discretion consent of the court.Minister pursuant to the Mining Act for the transfer of the granted Vendor Tenements; and
(iii) the Vendor Shareholder Approval;
(e) no Vendor Shareholder will become a Principal following completion of the Distribution;
(f) There it is the sole legal and beneficial owner of all right, title and interest to the Property, free and clear of any Encumbrances and no contract, other Person holds any rights to undertake any activities on the Properties or to access the Vendor Tenements or the Glenfine Tenements;
(g) it has the sole right to earn and acquire a legal and beneficial interest in the Glenfine Tenements pursuant to the Glenfine Agreement;
(h) Schedule “A” to this Agreement contains a complete and accurate list of all of the tenements comprising the Property;
(i) the tenements constituting the Property have been properly located and recorded in compliance with applicable Law and are valid and subsisting;
(j) no Person has any agreement or option or any other right or privilege capable of another party binding upon becoming an agreement or which at any time in option for the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any purchase of the Subject Shares Property or any portion thereof or interest therein from the Vendor, other than pursuant to the provisions of transactions contemplated in this Agreement.;
(gk) There the Property is in good standing, full force and effect and is valid and enforceable in accordance with its terms under the Mining Act, is in compliance with applicable Law and all work required to be performed and filed in respect thereof has been performed and filed, all taxes, royalties, rentals, fees, expenditures and other payments in respect thereof have been paid or incurred and all filings in respect thereof have been made;
(l) the Glenfine Agreement is in full force and effect and is valid and enforceable in accordance with its terms against all of the parties to it. The Vendor is not in default or breach of its obligations under the Glenfine Agreement, and no outstanding voting trustevent has occurred and no condition or state of facts exists that, proxy with the passage of time or the giving of notice or both, would constitute such a default or breach by the Vendor or, to its knowledge, any other party thereto. The Vendor does not intend, and has not received a notice that any party to the Glenfine Agreement intends, to terminate, amend, not renew or cancel the Glenfine Agreement;
(m) it has not elected or refused to participate in any exploration, development or other similar agreement operations with respect to the voting Property which has or may give rise to any penalties, forfeitures or reduction of its interest by virtue of any conversion or other alteration occurring under the title and operating documents which govern the Property;
(n) there is no material adverse claim against or challenge to the title to or ownership of the Subject Shares.Property and the Vendor is not aware of any defects, failures or impairments in the title of the Vendor to the Property whether or not an action, suit, proceeding or inquiry is pending or threatened and whether or not discovered by any third party;
(ho) To there is no claim, litigation, arbitration or administrative proceeding (whether or not purportedly on behalf of the Vendor) in progress, pending or, to the best of the Vendor’s knowledge, neither entering into nor threatened against or otherwise affecting the delivery Vendor relating to the Property at law or in equity and there is no judgment, decree, injunction, ruling, order or award of this Agreement nor any tribunal outstanding against or affecting the completion Vendor relating to the Property;
(p) the Vendor has full and unfettered access to the Property (subject to the terms of the transactions contemplated hereby by Glenfine Agreement and the Vendor will result in the violation of:
(i) grant of any of the provisions of the organizational documents or by-laws of the VendorVendor Tenements that are ELAs);
(iiq) the Vendor has not received any contract (notice, whether written or oral) , from any Governmental Entity of any revocation or other instrument intention to which revoke any interest of the Vendor in the Property and is a party or by not aware of and has not received any information which could imply that the Purchaser will not be permitted to conduct activities in respect to the Property (including under the Glenfine Agreement);
(r) the Vendor is bound; orhas provided the Purchaser with access to full and complete copies of the Mining Information and the Vendor has the sole right, title and ownership of all the Mining Information;
(iiis) any lawthe operation of the Property and the use, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), maintenance and operation thereof has been and are in respect of which the Vendor must comply.
(i) compliance with all Environmental Laws. The Vendor has not disclosed complied with all reporting and monitoring requirements under all Environmental Laws with respect to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) Property. The Vendor has not received or been provided any notice of any non-compliance with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information Environmental Laws relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares Property and the Vendor has not purchased been convicted of an offence of non-compliance with any Environmental Laws relating to the Consideration Shares as a result Property;
(t) all environmental liabilities in respect of the tenements that comprise the Property have been clearly and fairly disclosed to the Purchaser, and the Vendor is in compliance with all material environmental and current obligations binding on it and the Vendor is not aware of any “general solicitation” notification under any Environmental Law requiring the Vendor to take or “general advertising” (as those terms are used omit to take any action in Regulation D under respect of the 1933 Act).Property;
(ru) there are no past or present (or, to the best of the Vendor’s knowledge, future) events, conditions, circumstances, activities, practices, incidents, actions or plans associated with the Property which may interfere with or prevent compliance or continued compliance by the Purchaser with Environmental Laws as in effect on the date hereof or which may give rise to any liability of the Purchaser under Environmental Laws associated with the Property;
(v) except in respect to ELA 6951, EL 6897, ELA 7280 and ELA 7276, there are no Native Title Claims which have been made or, to the knowledge of the Vendor, threatened with respect to the Property or any authorization issued by any Governmental Entity in respect of, or otherwise related to the Property;
(w) except in respect to ELA 6951, EL 6897, ELA 7280 and ELA 7276, no other Person, including Persons representing or purporting to represent a Native Title Group, and no Native Title Group, has asserted any right or interest of any kind whatsoever, relating to the Property;
(x) no material dispute between the Vendor and any non-governmental organization, community, community group, civil organization or Native Title Group exists or, to the best of the Vendor’s knowledge, is threatened or imminent with respect to the Property. The Vendor understands has provided the Purchaser with full and acknowledges that Consideration Shares complete access to all material correspondence received by the Vendor from any non- governmental organization, community, community group, civil organization or Native Title Group in respect of the Property;
(y) there are no material contracts, agreements or understandings with any party relating to the Property which have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available disclosed to the Purchaser for offers in writing prior to the Effective Date and sales no other Person holds any rights to Institutional Accredited Investors.undertake any activities on the Property or to access any of the tenements that comprise the Property;
(sz) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements act or proceeding has been taken by or against it in connection with its dissolution, liquidation, winding up, bankruptcy or reorganization or for the appointment of a trustee, receiver, manager or other administrator of the 1933 Vendor or any of its properties or assets nor, to its knowledge, is any such act or proceeding threatened. It has not sought protection under the Corporations Act or applicable state securities laws, certificates representing such Consideration Shares, and similar legislation; and
(aa) all certificates issued in exchange therefor or in substitution thereof, shall bear information concerning the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, Property that if, at might reasonably be regarded as material to a purchaser for value of the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery Property has been disclosed to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing such information, including any Mining Information, is true and accurate in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, material respects and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument)misleading.
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:: Corporate
(a) The Vendor is a corporation existing duly incorporated, organized and subsisting under the laws of the State Province of Delaware;Ontario with the corporate power to own its Purchased Assets and to carry on its business and has made all necessary filings under all applicable corporate, securities and taxation laws or any other laws to which the Vendor is subject.
(b) The Vendor is has the legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement Agreement, having obtained all necessary director and shareholder approvals prior to the Closing Date, and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts Purchased Assets to the Purchaser free and clear of all Encumbrances andliens, upon payment charges, encumbrances and any other rights of the Purchase Priceothers, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrancesexcept as disclosed in Schedule 3.01(b).
(d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(ec) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ ' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(fd) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares Purchased Assets other than pursuant to the provisions of this AgreementAgreement or pursuant to purchase orders accepted by the Vendor in the usual and ordinary course of the Business.
(ge) There is no outstanding voting trust, proxy or other similar agreement with respect to Neither the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational constating documents or by-laws of the Vendor;,
(ii) any contract (written or oral) agreement or other instrument to which the Vendor is a party or by which the Vendor is bound; , or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Applicable Law”), in respect of which the Vendor must comply.
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Magnitude Information Systems Inc)
Vendor’s Representations and Warranties. The Vendor represents and warrants hereby makes to the Purchaser thatthe following representations and warranties and acknowledges that the Purchaser is relying upon such representations and warranties in connection with entering into this Agreement:
(a) The Vendor Corporation is a corporation existing duly incorporated, organized and subsisting under the laws of Ontario with the State of Delaware;corporate power to own its assets and to carry on its business.
(b) The Vendor is authorized capital of the legalCorporation consists of (i) an unlimited number of common shares, and the Accounts are the beneficial, owner (ii) an unlimited number of preferred shares.
(c) All of the Subject issued and outstanding Shares free are beneficially owned by the Vendor and clear of all lienspledged to TEMIC pursuant to a share pledge agreement dated October 6, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others 2004 (collectively, the “EncumbrancesShare Pledge Agreement”).
(cd) The Vendor has good and sufficient the power, authority and right to enter into and deliver this Agreement and to transfer the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts to the Purchaser free and clear of Purchaser, subject to all Encumbrances andexisting Charges, upon payment of including the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.
(d) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the VendorShare Pledge Agreement.
(e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, terms subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in Neither the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Vendor will result in the violation of:
(i) any of the provisions of the organizational constating documents or by-laws of the VendorVendor or of the Corporation;
(ii) any contract (written or oral) agreement or other instrument to which the Vendor or the Corporation is a party or by which the Vendor or the Corporation is bound; or
(iii) any law, statute, rule, regulation, or any existing applicable decree, judgment, or order by any court, administrative agency, or other governmental body (collectively, “Law”), Applicable Law in respect of which the Vendor or the Corporation must comply, except to the extent that such violation would not reasonably be expected to limit in any material manner the operations of the Corporation’s business as they are presently conducted.
(i) The Vendor has not disclosed to the Purchaser any confidential or material, non-public information concerning the Common Shares or the Corporation.
(jg) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.
(k) The Vendor understands that the Vendor may not be able to resell the Consideration Shares except in accordance with limited exemptions available under applicable securities legislation, and that the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating to the Purchaser and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No a non-resident person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale section 116 of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited InvestorsTax Act.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”);
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Vendor’s Representations and Warranties. The Vendor represents and warrants to the Purchaser that:: Corporate Standing, Power and Authorization
(a) The the Vendor is a corporation existing duly incorporated, organized and subsisting under the laws of the State of DelawareAlberta;
(b) The Vendor is the legal, and the Accounts are the beneficial, owner of the Subject Shares free and clear of all liens, charges, encumbrances, hypothecs, pledges, mortgages, security interests of any nature, adverse claims, options, rights of pre-emption, and any other rights of others (collectively, “Encumbrances”).
(c) The Vendor has good and sufficient power, authority and right to enter into and deliver this Agreement and to transfer complete the legal and beneficial title and ownership of the Subject Shares on behalf of the Accounts transactions to the Purchaser free and clear of all Encumbrances and, upon payment of the Purchase Price, the Purchaser will acquire good and valid title to the Subject Shares, free and clear of all Encumbrances.be completed by them contemplated hereby;
(dc) The execution, delivery the execution and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Vendor.
(e) This Agreement constitutes a valid and legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(f) There is no contract, option or any other right of another party binding upon or which at any time in the future may become binding upon the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Subject Shares other than pursuant to the provisions of this Agreement.
(g) There is no outstanding voting trust, proxy or other similar agreement with respect to the voting of the Subject Shares.
(h) To the Vendor’s knowledge, neither entering into nor the delivery of this Agreement nor by the completion Vendor and the consummation by the Vendor of the transactions contemplated hereby by the Vendor this Agreement have been duly and validly authorized and will result not violate, nor be in the violation ofconflict with:
(i) any of the provisions of the organizational documents or articles, by-laws or governing documents of the Vendor;
(ii) any contract (written provisions of any agreement or oral) or other instrument to which the Vendor is a party or by which the Vendor it is bound; or
(iii) to the best of the Vendor's knowledge, any lawlaw applicable to the Vendor or the Assets;
(d) this Agreement has been duly executed and delivered by the Vendor and all other documents and instruments required hereunder to be executed and delivered by the Vendor have and shall be duly executed and delivered and this Agreement does, statuteand such documents and instruments will, ruleconstitute legal, regulationvalid and binding obligations of the Vendor enforceable against the Vendor in accordance with the respective terms of this Agreement and such documents and instruments;
(e) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body exercising jurisdiction over the Assets of the Vendor is required for the due execution, delivery and performance by the Vendor of its obligations under this Agreement; Assets of the Vendor
(f) the Vendor is and will be on the Closing Date, the legal and beneficial owner of the Assets, with good and marketable title thereto, free and clear of all mortgages, liens, other than those outlined in Appendix "A", charges, security interests, encumbrances, equities, pre-emptive rights of purchase (such as rights of first refusal), restrictions, deemed trusts or other claims and the Vendor represents and warrants to the Purchaser that the Vendor, has not encumbered or alienated the Assets or any interest therein and the Assets are now and at the Closing Date will be free and clear of all liens, except those outlined in Appendix "A", charges, encumbrances and adverse claims;
(g) the Assets comprise all or substantially all of the assets of the Vendor with the exception of two pressure vessels (serial # 430 and 431) and one infrared sterilizer (both of which shall remain the Vendor's property after the Closing Date) ;
(h) there are no material claims, proceedings, actions, lawsuits, administrative proceedings or governmental investigations, other than that outlined in Appendix "8", in existence, or, to the best of the Vendor's knowledge, contemplated or threatened against or with respect to the Vendor or the Assets which might result in impairment or loss of the Assets or which might otherwise adversely affect the Assets. The Vendor is not aware of any existing applicable decreebasis upon which any of such claims, judgmentproceedings, actions or order lawsuits might be commenced by any court, administrative agency, or other governmental body (collectively, “Law”), in respect of which the Vendor must comply.person;
(i) The the Vendor has not disclosed received any notices of violation or alleged violation of (i) the provisions of any material agreement or material contract in respect of the Assets, or (ii) default or violation of any legislation or regulations, other than that outlined in Appendix "8", which, in either case, would materially adversely affect the Assets; the Vendor has made available to the Purchaser all material documents, books and records and agreements within its possession and has not knowingly withheld any confidential such documents or materialagreements from the Purchaser affecting the Assets, non-public information concerning the Common Shares or Vendor's title to the Corporation.
(j) The Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts pursuant to exemptions from any prospectus, financial promotion or registration requirements under applicable securities legislation or the Vendor is permitted to purchase and hold the Consideration Shares on behalf of the Accounts under applicable securities laws without the need to rely on exemptions.Assets;
(k) The Vendor understands that the books and records of the Vendor may not appropriately reflect the financial and accounting transactions pertaining to the Assets, have been maintained and will be able to resell maintained until the Consideration Shares except Closing Date in accordance with limited exemptions available under applicable securities legislationprudent business practice and disclose all material transactions relating to the Assets;
(I) all income, property, severance and that similar taxes and assessments based on or measured by the ownership of the Assets or the receipt of proceeds there from payable by the Vendor is solely responsible for the Vendor’s compliance with applicable securities resale restrictions.
(l) The Vendor has not received or been provided with any offering memorandum, or any other document (other than annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is prescribed by statute or regulation and which has been publicly filed on SEDAR) describing the business and affairs of the Purchaser that has been prepared for delivery to and reviewed by it in order to assist it in making an investment decision in respect of the Consideration Shares.
(m) With the exception of the representations and warranties of the Purchaser set out in Section 7 of this Agreement, the Vendor has relied solely upon publicly available information relating period prior to the Purchaser Closing Date have been properly paid and not upon any oral or written representation as to fact or otherwise made by or on behalf of the Purchaser.
(n) No person has made any written or oral representations to the Vendor that any person will resell or repurchase any of the Consideration Shares, that any person will refund the purchase price of any of the Consideration Shares or as to the future price or value of the Consideration Shares.
(o) The Vendor will not resell any of the Consideration Shares except in accordance with applicable securities legislation and stock exchange rules.
(p) The Vendor is an institutional “accredited investor” that satisfies one or more of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the United States Securities Act of 1933, as amended (the “1933 Act”) (hereinafter referred to as an “Institutional Accredited Investor”), and is purchasing the Consideration Shares for investment purposes only for its own account or for the account of one or more Institutional Accredited Investors with respect to which it exercises sole investment discretion, and not with a view to any resale, distribution or other disposition of Consideration Shares in violation of United States federal or state securities laws.
(q) The Vendor has not become aware of any advertisement in printed media of general and regular paid circulation or on radio, television or other form of telecommunication or any other form of advertisement (including electronic display or the Internet) or sales literature with respect to the distribution of the Consideration Shares and the Vendor has not purchased the Consideration Shares as a result of any “general solicitation” or “general advertising” (as those terms are used in Regulation D under the 1933 Act).
(r) The Vendor understands and acknowledges that Consideration Shares have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States, and will, therefore, be “restricted securities” within the meaning of Rule 144 under the 1933 Act, and that the offer and sale of the Consideration Shares to it will be made in reliance upon an exemption from registration available to the Purchaser for offers and sales to Institutional Accredited Investors.
(s) The Vendor understands and acknowledges until such time as Consideration Shares are no longer required under applicable requirements of the 1933 Act or applicable state securities laws, certificates representing such Consideration Shares, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF ALAMOS GOLD INC. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY (1) RULE 144 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN BOTH CASES, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF (C)(1) AND (D) ABOVE, AFTER THE SELLER FURNISHES TO THE CORPORATION AND THE CORPORATION’S TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.” provided, that if, at the time the Purchaser is a “foreign issuer” as defined in Regulation S, such securities are being sold in accordance with the requirements of Rule 904 of Regulation S under the 1933 Act, as referred to above, and in compliance with local laws and regulations, the legend may be removed by providing a declaration to the Purchaser’s applicable transfer agent for such securities, in the form attached hereto as Schedule A (or as the Purchaser may prescribe from time to time); notwithstanding the foregoing, the Purchaser’s applicable transfer agent may impose additional requirements for the removal of legends from securities sold in accordance with Rule 904 of Regulation S under the 1933 Act in the future; provided further, that, if any Consideration Shares are being sold pursuant to Rule 144 under the 1933 Act, the legend may be removed by delivery to the Purchaser and the Purchaser’s applicable transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Purchaser to the effect that the legend is no longer required under applicable requirements of the 1933 Act or state securities laws.
(t) The Vendor is acquiring the Consideration Shares for the benefit of the Accounts, without a view to, or for a resale in connection with, any distribution thereof and with no present intention of distributing or reselling any part thereof. The Vendor was not created or used solely to purchase or hold the Consideration Shares. The Vendor is resident in the United States and all acts of solicitation, conduct or negotiations directly or indirectly in furtherance of the purchase of the Consideration Shares occurred outside of Canada (except in Ontario).
(u) The Vendor is an “accredited investor” as defined in section 1.1 of NI 45-106, and is not a person that is created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106 (unless each of the shareholders of such person is an “accredited investor” under such instrument).
(v) The Vendor acknowledges that the certificates representing the Consideration Shares (or any certificates issued in exchange or in substitution thereof), will bear the following legends with the necessary information inserted: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” and “WITHOUT PRIOR WRITTEN APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [THE DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED].” provided that subsequent to the date which is four months and one day after the Closing the certificates representing the Consideration Shares may be exchanged for certificates bearing no such legends.
(u) The Vendor acknowledges that it has been notified:
(i) of the delivery to the OSC of information with respect to the Vendor’s full name, residential address (or head office) and telephone number, the number and type of securities received, the total value of such securities, the prospectus exemption relied upon by the Purchaser and the date of distribution (collectively the “Vendor Information”)discharged;
(ii) that the Vendor Information is being collected indirectly by the OSC under the authority granted to it by the securities laws of Ontario;
(iii) that the Vendor Information is being collected for the purposes of the administration and enforcement of the Securities Laws of Ontario;
(iv) that the Administrative Assistant to the Director of Corporate Finance of the OSC can be contacted at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at (▇▇▇) ▇▇▇-▇▇▇▇ regarding any questions about the OSC’s indirect collection of the Vendor Information; and
(v) the Vendor authorizes the indirect collection of the Vendor Information by the OSC. The representations and warranties of the Vendor set forth in this Section 6 will survive the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Capital Reserve Canada LTD)