DRAFT
UNDERWRITING AGREEMENT
----------------------
5,000,000 COMMON SHARES
ID BIOMEDICAL CORPORATION
[OCTOBER 1], 2003
CIBC World Markets Corp.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
Canaccord Capital Corporation
RBC Dominion Securities Inc.
▇▇▇▇ ▇▇▇▇ & Co., Inc.
▇▇▇▇▇ Fargo Securities, LLC
c/o CIBC World Markets Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Ladies and Gentlemen:
ID Biomedical Corporation, a company incorporated and existing
under the laws of the Province of British Columbia (the "COMPANY") proposes,
subject to the terms and conditions contained herein, to issue and sell to CIBC
World Markets Corp. and the other underwriters named on Schedule A to this
Agreement (the "UNDERWRITERS") an aggregate of 5,000,000 shares, no par value
(the "INITIAL SHARES") of the Company's common shares (the "COMMON SHARES") and
to grant to the Underwriters the option described in Section 1(b) hereof to
purchase all or any part of 750,000 additional Common Shares to cover
over-allotments, if any, and for market stabilization purposes. The Initial
Shares and all or any part of the 750,000 Common Shares subject to the option
described in Section 1(b) hereof (the "OPTION SHARES") are hereinafter called,
collectively, the "SHARES". The respective amounts of the Initial Shares to be
purchased by each of the Underwriters, acting severally and not jointly, are set
forth opposite their names on Schedule A hereto.
The public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the Underwriters shall be
US$o (the "PURCHASE PRICE"). In consideration of the Underwriters' agreement to
purchase the Shares and in consideration of the services to be rendered by the
Underwriters in connection therewith the Company agrees to pay to the
Underwriters a fee of US$o per Share (the "UNDERWRITING FEE"). The Underwriting
Fee shall be due and payable at 5:30 a.m., Vancouver time, on the Closing Date
(as defined herein) (the "CLOSING TIME") against payment for the Shares and
shall be payable by the Company at the Closing Time as follows: (i) 6% of the
total Underwriting Fee shall be paid directly to CIBC World Markets Corp. as a
work fee; and (ii) the remaining 94% shall be paid to CIBC World
Markets Corp. on behalf of the Underwriters, to be divided by CIBC World Markets
Corp., after deducting all reasonable out of pocket expenses of each of the
Underwriters and the fees and disbursements of the Underwriters' Counsel, in the
following proportions: o% to CIBC World Markets Corp., o% to U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc., o% to Canaccord Capital Corporation, o% to RBC Dominion Securities
Inc., o% to ▇▇▇▇ ▇▇▇▇ & Co., Inc. and o% to ▇▇▇▇▇ Fargo Securities, LLC.
1. SALE AND PURCHASE OF THE SHARES.
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On the basis of the representations, warranties and agreements
contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the Purchase Price, the number of
Shares set forth opposite the name of such Underwriter under
the column "Number of Shares to be Purchased" on Schedule A to
this Agreement, subject to adjustment in accordance with
Section 11 hereof.
(b) The Company agrees to grant an option to the Underwriters to
purchase up to an additional 750,000 Common Shares at the
Purchase Price, less an amount per share equal to any
dividends or distributions declared by the Company and payable
on the Initial Shares but not payable on the Option Shares.
The option hereby granted will expire 30 days after the
Closing Date as defined herein and may be exercised in whole
or in part on one occasion only for the purpose of covering
over-allotments, if any, and for market stabilization purposes
which may be made in connection with the offering and
distribution of the Initial Shares upon notice by CIBC World
Markets Corp., on behalf of the Underwriters, to the Company
setting forth the number of Option Shares as to which the
several Underwriters are then exercising the option and the
time and date of payment and delivery for such Option Shares.
Such time and date of delivery (the "DATE OF DELIVERY") shall
be determined by the Underwriters, but shall not be later than
seven full business days after the exercise of said option,
nor in any event prior to the Closing Time. If the option is
exercised as to all or any portion of the Option Shares, each
of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Shares
then being purchased which the number of Initial Shares set
forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Shares, subject in each
case to such adjustments as the Underwriters in their
discretion shall make to eliminate any sales or purchases of
fractional shares.
(c) The Underwriters shall offer the Shares for sale to the public
directly and through other investment dealers and brokers only
as permitted by applicable securities laws and upon the terms
and conditions set forth in the Final Prospectuses (as defined
herein) and this Agreement. The Underwriters agree that they
will not, directly or indirectly, distribute the Registration
Statement, the Preliminary Prospectuses or the Final
Prospectuses or publish any prospectus, circular,
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advertisement or other offering material in any jurisdiction
other than the Qualifying Provinces (as defined herein) or
such states of the United States where the Shares are duly
qualified under U.S. federal and applicable state securities
laws, in such manner as to require registration of the Shares
or the filing of a prospectus or any similar document with
respect to the Shares by the Company therein. The Underwriters
agree that each of the Underwriters that is not registered as
a broker-dealer under Section 15 of the 1934 Act (as defined
herein), will not offer or sell any Shares in, or to persons
who are nationals or residents of, the United States other
than through one of its United States registered broker-dealer
affiliates or otherwise in compliance with the 1934 Act Rule
15a-6. The parties hereto agree that sales of Shares in Canada
may be made only by an Underwriter that is either registered
in the appropriate category or exempt from registration under
applicable Canadian securities laws or by its appropriately
registered Canadian affiliate or agent.
2. DELIVERY AND PAYMENT.
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Delivery by the Company of the Underwriting Fee to CIBC World
Markets Corp., for the accounts of the respective Underwriters and payment of
the purchase price by certified or official bank check or checks payable in
(same day) funds or immediately available funds by wire transfer drawn to the
order of the Company for the Shares, against delivery of the respective
certificates therefor to the Underwriters, shall take place at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in Vancouver, or such other location as agreed to by
the Company and the Underwriters, at 5:30 a.m., Vancouver time, on October o,
2003, or at such time on such other date, not later than [OCTOBER 31, 2003], as
shall be agreed upon by the Company and the Underwriters (such time and date of
delivery and payment are called the "CLOSING DATE"). Unless the context
otherwise requires, any reference to Closing Date shall also mean Date of
Delivery.
In addition, in the event that any or all of the Option Shares
are purchased by the Underwriters, payment of the Purchase Price for, and
delivery of certificates for, such Option Shares shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Underwriters and the Company, on the Date of Delivery as specified in the notice
from CIBC World Markets Corp., on behalf of the Underwriters, to the Company.
Certificates evidencing the Initial Shares and the Option
Shares, if any, shall be registered in such names and shall be in such
denominations as the Underwriters shall request at least two full business days
before the Closing Date or the relevant Date of Delivery, as the case may be,
and shall be made available to the Underwriters on the full business day before
the Closing Date or the relevant Date of Delivery, as the case may be.
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING.
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The Company has prepared and filed with the British Columbia
Securities Commission in the province of British Columbia (the "REVIEWING
AUTHORITY") and with the securities regulatory authorities (together with the
Reviewing Authority, the "QUALIFYING AUTHORITIES") Alberta, Saskatchewan,
Manitoba and Ontario (together with British Columbia,
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the "QUALIFYING PROVINCES") a preliminary short form prospectus relating to the
Shares (the "CANADIAN PRELIMINARY PROSPECTUS"). The Company has filed the
Canadian Preliminary Prospectus with the Qualifying Authorities pursuant to
National Policy 43-201 - Mutual Reliance Review-System for Prospectuses and
Annual Information Forms and its related memorandum of understanding, and the
Reviewing Authority is acting as principal regulator. The Reviewing Authority
has issued a preliminary Mutual Reliance Review System decision document for the
Canadian Preliminary Prospectus. The Company has prepared and filed with the
United States Securities and Exchange Commission (the "SEC") a registration
statement on Form F-10 (File No. 333-109066) covering the Shares under the
Securities Act of 1933, as amended (the "1933 ACT"), including the Canadian
Preliminary Prospectus (with such deletions therefrom and additions thereto as
are permitted or required by Form F-10 and the applicable rules and regulations
of the SEC) (the "U.S. PRELIMINARY PROSPECTUS", and together with the Canadian
Preliminary Prospectus, the "PRELIMINARY PROSPECTUSES" ).
In addition, the Company (A) has prepared and filed (1) with
the Qualifying Authorities, a final short form prospectus relating to the Shares
(the "BASE PREP PROSPECTUS") which omits the PREP Information (as hereinafter
defined) in accordance with National Instrument 44-103 - Post-Receipt Pricing
(the "PREP PROCEDURES") and (2) with the SEC, an amendment to such registration
statement, including the Base PREP Prospectus (with such deletions therefrom and
additions thereto as are permitted or required by Form F-10 and the applicable
rules and regulations of the SEC), and (B) will prepare and file, promptly after
the execution and delivery of this Agreement, (1) with the Qualifying
Authorities, in accordance with the PREP Procedures, a supplemented PREP
prospectus setting forth the PREP Information (the "SUPPLEMENTED PREP
PROSPECTUS"), and (2) with the SEC, in accordance with General Instruction II.L.
of Form F-10, the Supplemented PREP Prospectus (with such deletions therefrom
and additions thereto as are permitted or required by Form F-10 and the
applicable rules and regulations of the SEC) (the "U.S. SUPPLEMENTED
PROSPECTUS"). The information included in the Supplemented PREP Prospectus that
is omitted from the Base PREP Prospectus and which is deemed under the PREP
Procedures to be incorporated by reference in the Base PREP Prospectus as of the
date of the Supplemented PREP Prospectus is referred to herein as the "PREP
INFORMATION".
Each prospectus relating to the Shares (A) used in the United
States (1) before the time such registration statement on Form F-10 became
effective or (2) after such effectiveness and prior to the execution and
delivery of this Agreement or (B) used in Canada (1) before a final Mutual
Reliance Review System decision document for the Base PREP Prospectus had been
received from the Reviewing Authority on behalf of itself and the Qualifying
Authorities or (2) after such final Mutual Reliance Review System decision
document has been received and prior to the execution and delivery of this
Agreement, in each case, including the documents incorporated by reference
therein, that omits the PREP Information, is herein called a "PRELIMINARY
PROSPECTUS". Such registration statement on Form F-10, including the exhibits
thereto and the documents incorporated by reference therein, as amended at the
time it became effective is herein called the "REGISTRATION STATEMENT". The
prospectus included in the Registration Statement at the time it became
effective, including the documents incorporated by reference therein, is herein
called the "U.S. PROSPECTUS", except that if a U.S. Supplemented
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Prospectus containing the PREP Information is thereafter furnished to the
Underwriters after the execution of this Agreement (whether or not such
prospectus is required to be filed pursuant to the rules and regulations of the
SEC under the 1933 Act (the "1933 ACT REGULATIONS")), the term "U.S. PROSPECTUS"
shall refer to such U.S. Supplemented Prospectus, including the documents
incorporated by reference therein.
The Base PREP Prospectus for which a final Mutual Reliance
Review System decision document has been received from the Reviewing Authority
on behalf of itself and the Qualifying Authorities, including the documents
incorporated by reference therein, is herein referred to as the "CANADIAN
PROSPECTUS" (together with the U.S. Prospectus, the "FINAL PROSPECTUSES"),
except that, if, after the execution of this Agreement, a Supplemented PREP
Prospectus containing the PREP Information is thereafter filed with the
Qualifying Authorities, the term "CANADIAN PROSPECTUS" shall refer to such
Supplemented PREP Prospectus, including the documents incorporated by reference
therein.
The Company has also prepared and filed with the SEC an
appointment of agent for service of process upon the Company on Form F-X in
conjunction with the filing of the Registration Statement (the "FORM F-X").
4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company covenants, represents and warrants to each
Underwriter as follows:
(a) All information and statements contained in the Canadian
Preliminary Prospectus, the U.S. Preliminary Prospectus, the
Canadian Prospectus, the U.S. Prospectus, the Registration
Statement and any amendment or supplement thereto (each an
"AMENDMENT OR SUPPLEMENT") (except information or statements
relating solely to the Underwriters or furnished to the
Company by the Underwriters expressly for use therein), are
true and correct and do not contain any untrue statement of a
material fact or any misrepresentation (as defined in the
SECURITIES ACT (British Columbia)) and constitute full, true
and plain disclosure of all material facts relating to the
Company and the Shares and no material fact or information has
been omitted from such disclosure, except for facts or
information relating solely to or furnished by the
Underwriters, which is required to be stated in such
disclosure, or is necessary to make the statements or
information contained in such disclosure, in the case of the
Registration Statement, not misleading and in the case of the
Preliminary Prospectuses, the Final Prospectuses or any
Amendment or Supplement, in light of the circumstances under
which they were made, not misleading. Each U.S. Preliminary
Prospectus and U.S. Prospectus delivered to the Underwriters
for use in connection with this offering was, and will be
identical to the electronically transmitted copies thereof
filed with the SEC pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(b) The Preliminary Prospectuses and the Final Prospectuses comply
fully with the requirements of Canadian securities laws and
U.S. securities laws, as applicable
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(collectively, the "APPLICABLE SECURITIES LAWS", unless the
context suggests otherwise).
(c) The Company is eligible in accordance with the provisions of
NI 44-101 to file a short form prospectus with Qualifying
Authorities. A final Mutual Reliance Review System decision
document has been received from the Reviewing Authority on
behalf of itself and the Qualifying Authorities in respect of
the Base PREP Prospectus.
(d) The Company meets the general eligibility requirements for use
of Form F-10 under the 1933 Act. The Registration Statement
has become effective under the 1933 Act.
(e) No order preventing or suspending the use of the Canadian
Preliminary Prospectus, the U.S. Preliminary Prospectus, the
Canadian Prospectus or the U.S. Prospectus and no order having
the effect of ceasing or suspending the distribution of the
Shares or trading in the Common Shares has been issued and no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose
have been instituted under the Applicable Securities Laws or
threatened by the Qualifying Authorities or the SEC, and any
requests for additional information on the part of the
Qualifying Authorities or the SEC (to be included in the Final
Prospectuses, Registration Statement or otherwise) have been
complied with to the satisfaction of the Qualifying
Authorities and/or the SEC, as applicable.
(f) The financial statements of the Company (including all notes
and schedules thereto) included or incorporated by reference
in the Preliminary Prospectuses present, and in the Final
Prospectuses present fairly the financial position, the
results of operations, the statements of cash flows and the
statements of stockholders' equity and the other information
purported to be shown therein of the Company at the respective
dates and for the respective periods to which they apply in
conformity with Canadian generally accepted accounting
principles and consistently applied throughout the periods
involved, except as indicated therein and have been reconciled
to generally accepted accounting principles in the United
States in accordance with Item 18 of Form 20-F under the 1934
Act, except, in the case of the Preliminary Prospectuses, to
the extent permissible under the 1933 Act and the related
rules and regulations thereunder. The summary financial
information included in the Preliminary Prospectuses and the
Final Prospectuses presents fairly the information shown
therein as at the respective dates and for the respective
periods specified; and the summary financial information has
been presented on a basis consistent with the consolidated
financial statements so set forth in or incorporated by
reference in the Final Prospectuses.
(g) KPMG LLP, whose audit report will be filed with the Qualifying
Authorities and the SEC as a part of the Final Prospectuses
and the Registration Statement, are
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and, during the periods covered by their report, were
independent public accountants as required by Applicable
Securities Laws.
(h) Each of the Company, and ID Biomedical Corporation of
Washington, ID Biomedical Corporation of Quebec and ID
Biomedical Corporation of Maryland (collectively, the
"SUBSIDIARIES") is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation. Subject to the preceding
sentence, the Company does not control directly or indirectly
any entities, other than the Subsidiaries. The Company and
each Subsidiary is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in
which the nature of the business conducted by it or location
of the assets or properties owned, leased or licensed by it
requires such qualification, except for such jurisdictions
where the failure to so qualify would not have a material
adverse effect on the assets or properties, business, results
of operations, prospects or financial condition of the Company
and each of its Subsidiaries, taken as a whole (a "MATERIAL
ADVERSE EFFECT"). The Company and each of the Subsidiaries has
all requisite corporate power and authority, and all necessary
authorizations, approvals, consents, orders, licenses,
certificates and permits of and from all governmental or
regulatory bodies or any other person or entity (collectively,
the "PERMITS"), to own, lease and license its assets and
properties and conduct its business, all of which are valid
and in full force and effect, as described in the Registration
Statement and the Final Prospectuses, except where the lack of
such Permits, individually or in the aggregate, would not have
a Material Adverse Effect. The Company and each of the
Subsidiaries has fulfilled and performed in all material
respects all of its material obligations with respect to such
Permits, and no event has occurred that could reasonably be
expected to result in revocation or termination thereof or
result in any other material impairment of the rights of the
Company or any Subsidiaries, as the case may be, thereunder.
Except as may be required under Applicable Securities Laws,
the applicable requirements of the Toronto Stock Exchange (the
"TSX") and The Nasdaq Stock Market, Inc., and the Underwriting
Agreement dated May 15, 2003 between CIBC World Markets Corp.,
Canaccord Capital Corporation, RBC Dominion Securities Inc.,
▇▇▇▇▇▇ Merchant Group Inc., TD Securities Inc., Desjardins
Securities Inc. and ▇▇▇▇▇ Fargo Securities, LLC, as
underwriters, and the Company relating to the sale of
3,000,000 common shares of the Company, no other Permits are
required on the part of the Company or any Subsidiary to enter
into, deliver and perform under this Agreement and to issue
and sell the Shares to be sold by it.
(i) The Company and each of the Subsidiaries, have taken prudent
steps to protect and enforce all patents, patent rights,
patent applications trademarks, trademark applications, trade
names, service marks, copyrights, copyright applications,
licenses, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights
and proprietary knowledge (collectively, "INTANGIBLES")
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necessary to carry on the business currently conducted and as
proposed to be conducted by them as described in the Final
Prospectuses. Except as set forth in the Preliminary
Prospectuses and the Final Prospectuses, neither the Company
nor any of the Subsidiaries (i) has received any notice of, or
is aware of, any infringement of or conflict with asserted
rights of others with respect to any Intangibles which would,
if the subject of an unfavorable decision, ruling or finding,
reasonably be expected to have a Material Adverse Effect, (ii)
is subject to any judgment, order, writ, injunction or decree
of any court of any federal, provincial, state, local, foreign
or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any
arbitrator, or has entered into or is a party to any contract,
which restricts or impairs the use of any of the Intangibles
which would have a Material Adverse Effect, (iii) has been the
subject of any claims with respect to the validity or
ownership of any of the Intangibles which would have a
Material Adverse Effect, or (iv) is aware of any prior art
that may render any patent application owned by the Company or
any Subsidiary unpatentable which has not been disclosed to
the United States Patent & Trademark Office (the "PTO") and
which could have a Material Adverse Effect.
(j) The Company and each of the Subsidiaries has good and
marketable title in fee simple to all items of real property
and good and marketable title to all personal property
described in the Preliminary Prospectuses and the Final
Prospectuses as being owned by it subject to defects that
would not result in a Material Adverse Effect. Any real
property and buildings that is described in the Preliminary
Prospectuses or the Final Prospectuses as being held under
lease by the Company and each of the Subsidiaries is held by
it under valid, existing and enforceable leases, free and
clear of all liens, encumbrances, claims, security interests
and defects, except such as are described in the Final
Prospectuses or would not have a Material Adverse Effect.
(k) Except as expressly set forth in the Final Prospectuses, there
is and will be as of the Closing Date no action, suit,
proceeding, inquiry or investigation before or brought by any
court or government agency, government instrumentality or
body, domestic or foreign to which the Company or the
Subsidiaries is subject or which is pending or, to the best of
the Company's knowledge, threatened, (i) against the Company
or any of its Subsidiaries, (ii) which has as the subject
thereof any officer or director of, or property owned or
leased by the Company or any of its Subsidiaries or (iii)
relating to environmental or discrimination matters, which,
individually or in the aggregate, might reasonably be expected
to have a Material Adverse Effect, adversely affect the
consummation of this Agreement or which is required to be
disclosed in the Preliminary Prospectuses or the Final
Prospectuses that is not or will not be so disclosed.
(l) Subsequent to June 30, 2003, except as described in the Final
Prospectuses (i) there has not been and will not have been
prior to the Closing Date any material adverse change with
regard to the assets or properties, business, results of
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operations or financial condition of the Company; (ii) neither
the Company nor its Subsidiaries has sustained or will have,
prior to the Closing Date, sustained any loss of or
interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or any court or legislative or other
governmental action, order or decree which would have a
Material Adverse Effect; and (iii) neither the Company nor its
Subsidiaries (A) has or will have, prior to the Closing Date
issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money, except for (x)
options or shares issued in the ordinary course of business
under existing stock option, director's fee payment or similar
plans or pursuant to the exercise of warrants to purchase
common shares of the Company and (y) liabilities or
obligations incurred in the ordinary course of business, (B)
has or will have, prior to the Closing Date entered into any
material transaction not in the ordinary course of business or
(C) has or will have, prior to the Closing Date declared or
paid any dividend or made any distribution on any shares of
its stock or redeemed, purchased or otherwise acquired or
agreed to redeem, purchase or otherwise acquire any shares of
its stock.
(m) There are no reports or information that in accordance with
the requirements of the Qualifying Authorities must be made
publicly available in connection with the offering of the
Shares that have not been made publicly available as required.
No material change reports or other documents have been filed
on a confidential basis with the Qualifying Authorities since
December 31, 2002. There are no documents required to be filed
with the Qualifying Authorities in connection with the
Canadian Preliminary Prospectus or the Canadian Prospectus
that have not been or will not be filed as required. There is
no document, contract or other agreement of a character
required to be described in the Preliminary Prospectuses, or
the Final Prospectuses or to be filed as an exhibit to the
Registration Statement which is not described or filed as
required by Applicable Securities Laws. Each description of a
contract, document or other agreement in the Preliminary
Prospectuses and the Final Prospectuses does accurately
reflect in all material respects the terms of the underlying
document, contract or agreement. Each agreement described in
the Preliminary Prospectuses, or the Final Prospectuses to
which the Company or a Subsidiary is a party, subject to
customary exceptions, is in full force and effect and is valid
and enforceable by and against the Company or a Subsidiary, as
the case may be, in accordance with its terms. Neither the
Company nor any Subsidiary, if such Subsidiary is a party, nor
to the best of the Company's knowledge, any other party is in
default in the observance or performance of any term or
obligation to be performed by it under any such agreement,
and, to the best of the Company's knowledge, no event has
occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or
event, individually or in the aggregate, would have a Material
Adverse Effect. No default exists, and no event has occurred
which with notice or lapse of time or both would constitute a
default, in the due performance
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and observance of any term, covenant or condition, by the
Company or any Subsidiary, if such Subsidiary is a party
thereto, of any other agreement or instrument to which the
Company or such Subsidiary is a party or by which the Company,
any Subsidiary or their respective properties or business may
be bound or affected which default or event, individually or
in the aggregate, would have a Material Adverse Effect.
(n) Neither the Company nor any of its Subsidiaries is in
violation of any term or provision of its memorandum,
articles, certificate of incorporation, charter, by-laws or
other constating documents ("CONSTATING DOCUMENTS") or of any
license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation,
individually or in the aggregate, would have a Material
Adverse Effect.
(o) Subject to compliance with Applicable Securities Laws and the
applicable requirements of the TSX and The Nasdaq Stock
Market, Inc., neither the execution, delivery and performance
of this Agreement by the Company nor the consummation of any
of the transactions contemplated hereby (including, without
limitation, the issuance and sale by the Company of the Shares
to be sold by it) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict
with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse
of time or both would constitute a default) under, or require
any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any Subsidiary pursuant
to the terms of, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any
Subsidiary is a party or by which either the Company or any
Subsidiary or any of their respective properties or businesses
is bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation applicable to the Company
or any Subsidiary or violate any provision of the constating
documents of the Company or any Subsidiary, except for such
consents or waivers which have already been obtained and are
in full force and effect or which if not obtained would not
have a Material Adverse Effect.
(p) The Company has authorized and outstanding share capital (as
of September o, 2003) as set forth in the Final Prospectuses
and the Canadian Prospectus. The certificates evidencing the
Shares are in due and proper legal form and have been duly
authorized for issuance by the Company. All of the issued and
outstanding Common Shares have been duly and validly issued in
compliance with all Applicable Securities Laws and are fully
paid and nonassessable. None of the issued and outstanding
Common Shares was issued in violation of any preemptive or
other similar rights of any shareholder of the Company. There
are no statutory preemptive or other similar rights to
subscribe for or to purchase or acquire any shares of the
Company or any such rights pursuant to its constating
documents or any agreement or instrument to or by which the
Company or any of its Subsidiaries is a party or bound except
as described in the Final Prospectuses.
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The description of the Company's stock option and other stock
plans or arrangements, and the options or other rights granted
thereunder, as is set forth in the Final Prospectuses does
accurately and fairly present the information required to be
disclosed with respect to such plans, arrangements, options
and rights. The Shares to be sold by the Company, when issued
and sold pursuant to this Agreement, will be duly and validly
issued, fully paid and nonassessable and none of them will be
issued in violation of any preemptive or other similar right.
Except as is disclosed in the Final Prospectuses, there is no
outstanding option, warrant or other right calling for the
issuance of, and there is no commitment, plan or arrangement
to issue, any shares of the Company or any Subsidiaries or any
security convertible into, or exercisable or exchangeable for,
such shares other than options or shares issued in the
ordinary course of business under existing stock option,
directors' fee payment or similar plans since the date
referred to in the Final Prospectuses. The Common Shares and
the Shares conform in all material respects to all statements
in relation thereto contained in the Final Prospectuses.
Except as is described in the Final Prospectuses, all
outstanding shares of capital stock of each Subsidiary have
been duly authorized and validly issued, and are fully paid
and nonassessable and are owned directly by the Company or by
another wholly owned subsidiary of the Company, free and clear
of any security interests, liens, encumbrances, equities or
claims.
(q) Except for the University of Tennessee Research Foundation,
there are no persons with registration rights or other similar
rights to have any securities registered or qualified for
distribution pursuant to the Registration Statement, the
Canadian Prospectus or otherwise registered by the Company
under the 1933 Act or qualified for distribution under any
Canadian provincial securities legislation.
(r) All necessary corporate action has been or will have been at
the Closing Date duly and validly taken by the Company to
authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares by the
Company. This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes and will
constitute a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as the enforceability thereof may be limited (i)
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally, (ii) by general equitable principles and (iii) with
respect to the indemnification and contribution rights, by
Applicable Securities Laws.
(s) Neither the Company nor any of its Subsidiaries are involved
in any labor dispute nor, to the best of the Company's
knowledge, is any such dispute threatened, which dispute in
either case would have a Material Adverse Effect. The Company
is not aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers or contractors
which would have a Material Adverse Effect. Other than as
disclosed in the Final Prospectuses, the Company is not aware
of any threatened or pending litigation between the Company or
any of its
-11-
Subsidiaries and any of its executive officers which, if
adversely determined, could have a Material Adverse Effect and
has not been informed that such officers will not remain in
the employment of the Company.
(t) No transaction has occurred between or among the Company and
any of its officers or directors or shareholders or any
affiliate or affiliates of any such officer or director or
shareholders that is required to be described in and is not
described in the Final Prospectuses.
(u) Neither the Company nor, to its knowledge, any of its
officers, directors or affiliates has taken, or will take,
directly or indirectly, any action designed to or which would
reasonably be expected to cause or result in, or which has
constituted or which would reasonably be expected to
constitute, the stabilization or manipulation of the price of
the Common Shares to facilitate the sale or resale of any of
the Shares.
(v) The Company and its Subsidiaries have filed all material
federal, state, provincial, local and foreign tax returns
which are required to be filed through the date hereof, or
have received extensions thereof, and have paid all taxes
shown on such returns and all assessments received by them to
the extent that the same are material and have become due
other than those taxes and assessments that are currently
being challenged and for which a reserve has been taken. There
are no tax audits or investigations pending, which if
adversely determined would have a Material Adverse Effect; nor
are there any material proposed additional tax assessments
against the Company or any of its Subsidiaries.
(w) The Common Shares are listed on the TSX and the Nasdaq
National Market ("NASDAQ"). The Company has taken no action
designed to, or likely to have the effect of, delisting the
Common Shares from the TSX or Nasdaq, nor has the Company
received any notification that the TSX or Nasdaq is
contemplating such delisting.
(x) The Shares are eligible for listing on the TSX, subject to
satisfaction of customary conditions. The Shares are eligible
for listing on Nasdaq, subject only to official notice of
issuance.
(y) Computershare Trust Corporation of Canada, at its office in
the City of Vancouver, has been duly appointed as registrar
and transfer agent for the Common Shares.
(z) The Company has prepared and filed with the SEC an appointment
of agent for service of process upon the Company on Form F-X.
(aa) The books, records and accounts of the Company and its
Subsidiaries accurately and fairly reflect, in reasonable
detail, the transactions in, and dispositions of, the assets
of, and the results of operations of, the Company and its
Subsidiaries. The
-12-
Company and each of its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles or any other criteria applicable to such
statements, and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(bb) The Company and its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses
in which it or they are engaged or propose to engage; all
policies of insurance and fidelity or surety bonds insuring
the Company or any of its Subsidiaries or the Company's or its
Subsidiaries' respective businesses, assets, employees,
officers and directors are in full force and effect; the
Company and each of its Subsidiaries are in compliance with
the terms of such policies and instruments in all material
respects; and neither the Company nor any Subsidiary of the
Company believes that it will not be able to renew its
existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not
have a Material Adverse Effect. Except as is set forth in the
Final Prospectuses, or as would not have a Material Adverse
Effect, neither the Company nor any Subsidiary has been denied
any insurance coverage which it has sought or for which it has
applied.
(cc) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory,
administrative or other governmental body necessary in
connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions herein
contemplated required to be obtained or performed by the
Company (except such additional steps as may be required in
connection with the filing of the Supplemented PREP Prospectus
and the U.S. Supplemented Prospectus, or as may be required by
the TSX, The Nasdaq Stock Market, Inc., the National
Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the
Underwriters under the state securities or Blue Sky laws (the
"BLUE SKY LAWS")) has been obtained or made and is in full
force and effect.
(dd) The Company and the Subsidiaries are in all material respects
in compliance with, and conduct their businesses in all
material respects in conformity with, all applicable U.S. and
Canadian federal, state, provincial, local and foreign laws,
rules and regulations and all applicable ordinances,
judgments, decrees, orders, units and injunctions of any court
or governmental agency or body, or the TSX or The Nasdaq Stock
Market, Inc.
-13-
(ee) There are no affiliations with the NASD among the Company's
officers, directors or, to the best of the Company's
knowledge, any five percent or greater stockholder of the
Company, except as is set forth in the Registration Statement
or the Final Prospectuses or otherwise disclosed in writing to
the Underwriters.
(ff) (i) Each of the Company and its Subsidiaries is in compliance
with all rules, laws and regulations relating to the use,
treatment, storage and disposal of toxic substances, including
without limitation radioactive materials, and protection of
health or the environment ("ENVIRONMENTAL LAW") which are
applicable to its business except for non-compliance that
would not have a Material Adverse Effect; (ii) neither the
Company nor any of its Subsidiaries has received any notice
from (A) any third party of an asserted claim under
Environmental Laws, which would have a Material Adverse
Effect, or (B) any governmental authority of an asserted claim
under Environmental Laws, which would have a Material Adverse
Effect; (iii) each of the Company and its Subsidiaries has
received all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its
business, except where the failure to obtain such permit,
license or approval would not have a Material Adverse Effect,
and is in all material respects in compliance with all terms
and conditions of any such permit, license or approval; (iv)
to the Company's knowledge, no facts currently exist that will
require the Company or any of its Subsidiaries to make future
material capital expenditures to comply with Environmental
Laws; and (v) to the best of the Company's knowledge, no
property which is or has been owned, leased or occupied by the
Company or its Subsidiaries has been designated as a
contaminated site under applicable state, provincial or local
law.
(gg) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of proceeds
thereof, will not be an "investment company" within the
meaning of the INVESTMENT COMPANY ACT OF 1940, as amended (the
"INVESTMENT COMPANY ACT").
(hh) None of the Company, any of its Subsidiaries or, to the
knowledge of the Company, any other person acting on behalf of
the Company or any of its Subsidiaries, including, without
limitation any director, officer, agent or employee of the
Company or any of its Subsidiaries, has directly or
indirectly, while acting on behalf of the Company or any of
its Subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment
to foreign or domestic government officials or employees or to
foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the UNITED
STATES FOREIGN CORRUPT PRACTICES ACT OF 1977, as amended; or
(iv) made any other unlawful payment.
(ii) Other than as contemplated by this Agreement, there is no
broker, finder or other party that is entitled to receive from
the Company any brokerage or finder's fee or
-14-
other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(jj) Each of the Company, its directors and officers has not
distributed and will not distribute prior to the later of (i)
the Closing Date and (ii) completion of the distribution of
the Shares, any offering material in connection with the
offering and sale of the Shares other than the Preliminary
Prospectuses, the Final Prospectuses, the Registration
Statement and other materials, if any, permitted by the
Applicable Securities Laws.
(kk) The Company shall use the net proceeds of the offering of the
Shares to be sold by it pursuant to this Agreement in the
manner specified in the Final Prospectuses under the caption
"USE OF PROCEEDS".
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
-------------------------------------------
The obligations of the Underwriters under this Agreement are
several and not joint. The respective obligations of the Underwriters to
purchase the Shares on the Closing Date are subject to each of the following
terms and conditions:
(a) The Supplemented PREP Prospectus shall have been timely filed
with the Qualifying Authorities in accordance with the PREP
Procedures, in accordance with Section 3 of this Agreement.
(b) The U.S. Supplemented Prospectus shall have been timely filed
with the SEC in accordance with Section 3 of this Agreement.
(c) No order preventing or suspending the use of the Canadian
Preliminary Prospectus, the U.S. Preliminary Prospectus, the
Canadian Prospectus or the U.S. Prospectus and no order having
the effect of ceasing or suspending the distribution of the
Shares or trading in the Common Shares shall have been or
shall be in effect and no stop order suspending the
effectiveness of the Registration Statement shall be in effect
and no proceedings for such purpose have been instituted under
the Applicable Securities Laws or threatened by the Qualifying
Authorities or the SEC, and any requests for additional
information on the part of the Qualifying Authorities or the
SEC (to be included in the Final Prospectuses, Registration
Statement or otherwise) shall have been complied with to the
satisfaction of the Qualifying Authorities and/or the SEC, as
applicable.
(d) The Underwriters shall be provided with evidence satisfactory
to them, acting reasonably, that (i) the Shares have been
conditionally approved for listing on the TSX, and (ii) the
Shares are eligible for listing on Nasdaq.
(e) The representations and warranties of the Company contained in
this Agreement and in the certificate delivered pursuant to
Section 5(f), if qualified by any materiality qualifier
whatsoever shall be true and correct, and otherwise shall be
true and correct in all material respects on the Closing Date
as if made on such
-15-
date. The Company shall have performed all covenants and
agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by it at or
before the Closing Date.
(f) The Underwriters shall have received on the Closing Date a
certificate, addressed to the Underwriters and dated the
Closing Date, executed by the chief executive officer and the
chief operating officer of the Company, or such other senior
officers as may be acceptable to the Underwriters, on the
Company's behalf, and not in their personal capacity to the
effect that (i) the signers of such certificate have carefully
examined the Registration Statement, the Canadian Prospectus,
the U.S. Prospectus and this Agreement and that the
representations and warranties of the Company in this
Agreement are true and correct in all material respects on the
Closing Date with the same effect as if made on the Closing
Date and the Company has performed all covenants and
agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or
prior to the Closing Date, (ii) no order preventing or
suspending the use of the Canadian Preliminary Prospectus, the
U.S. Preliminary Prospectus, the Canadian Prospectus or the
U.S. Prospectus is in effect and no order having the effect of
ceasing or suspending the distribution of the Shares or
trading in the Common Shares is in effect and no stop order
suspending the effectiveness of the Registration Statement is
in effect and no proceedings for such purpose have been
instituted under or are pending under the Applicable
Securities Laws or threatened by the Qualifying Authorities or
the SEC, and any requests for additional information on the
part of the Qualifying Authorities or the SEC (to be included
in the Final Prospectuses, Registration Statement or
otherwise) have been complied with to the satisfaction of the
Qualifying Authorities and/or the SEC, as applicable, and
(iii) the signers of such certificate have carefully examined
the Registration Statement, the Canadian Prospectus, the U.S.
Prospectus and this Agreement and, in their opinion (A) as of
the Effective Date, the Registration Statement, the Canadian
Prospectus and the U.S. Prospectus did not include any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading, and (B) since the
date of filing of the Final Prospectuses no event has occurred
which should have been set forth in a supplement or otherwise
required an amendment to the Registration Statement, the
Canadian Prospectus, the U.S. Prospectus.
(g) The Underwriters shall have received a final "long-form"
comfort letter of KPMG LLP, dated as of the date of this
Agreement (with the requisite procedures to be completed by
such auditors within two business days of the date of this
Agreement), addressed to the Underwriters and the board of
directors of the Company, in form and substance satisfactory
to the Underwriters, containing statements and information of
the type ordinarily included in accountants' comfort letters
to U.S. Underwriters with respect to certain financial and
accounting information relating to the Company in the Final
Prospectuses, which letters shall be in addition to the
auditors' report incorporated by reference into the
-16-
Preliminary Prospectuses, the Final Prospectuses and the
auditors' comfort letters addressed to the Qualifying
Authorities.
(h) The Underwriters shall have received on the Closing Date a
letter dated the Closing Date from KPMG LLP addressed to the
Underwriters and to the board of directors of the Company, in
form and substance satisfactory to the Underwriters,
confirming the continued accuracy of the comfort letter to be
delivered pursuant to Section 5 (g) above in connection with
the Final Prospectuses, with such changes as may be necessary
to bring the information in such letter forward to within two
business days of the Closing Date, which changes shall be
acceptable to the Underwriters, acting reasonably.
(i) The Underwriters shall have received on the Closing Date from
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company,
an opinion, addressed to the Underwriters and dated the
Closing Date, substantially in the form attached hereto as
"EXHIBIT A".
(j) The Underwriters shall have received on the Closing Date from
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, United States counsel for the
Company, an opinion, addressed to the Underwriters and dated
the Closing Date, substantially in the form attached hereto as
"EXHIBIT B".
(k) The Underwriters shall have received on the Closing Date (i)
from Seed I.P. Law Group, special intellectual property
counsel for the Company, an opinion addressed to the
Underwriters and dated the Closing Date, substantially in the
form attached hereto as "EXHIBIT C", and (ii) from ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇ and Crew LLP, special intellectual property
counsel for the Company, an opinion addressed to the
Underwriters and dated the Closing Date, substantially in the
form attached hereto as "EXHIBIT D".
(l) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(m) At the Closing Date, the Underwriters shall have received
executed copies of each of the "lock-up" agreements required
pursuant to Section 6(f) of this Agreement.
(n) All proceedings taken in connection with the sale of the
Shares as herein contemplated shall be reasonably satisfactory
in form and substance to the Underwriters, and their counsel
and the Underwriters shall have received from both Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("SKADDEN, ARPS") and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇") a favorable opinion,
addressed to the Underwriters and dated the Closing Date, with
respect to such matters as the Underwriters may reasonably
request, and the Company shall have furnished to both Skadden,
Arps and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ such documents as they may
reasonably request for the purpose of enabling them to pass
upon such matters.
-17-
(o) The Company shall have furnished or caused to be furnished to
the Underwriters such further certificates or documents as the
Underwriters shall have reasonably requested as may be
necessary to complete the purchase and sale of the Shares as
contemplated herein.
(p) The Underwriters shall have received on the Closing Date a
certificate from the Company's transfer agent dated the
Closing Date and signed by an authorized officer of such
transfer agent confirming the issued and outstanding Common
Shares of the Company.
6. COVENANTS OF THE COMPANY.
------------------------
(a) The Company shall promptly advise the Underwriters in writing
(i) when any post-effective amendment to the Registration
Statement shall have been filed with the SEC or shall have
become effective and when any supplement to the U.S.
Prospectus or the Canadian Prospectus or any amended U.S.
Prospectus or Canadian Prospectus shall have been filed, (ii)
of the receipt of any comments from the Qualifying
Authorities, or the SEC, (iii) of any request by the
Qualifying Authorities to amend or supplement the Canadian
Preliminary Prospectus or Canadian Prospectus or for
additional information or of any request by the SEC to amend
the Registration Statement or to amend or supplement the U.S.
Preliminary Prospectus or U.S. Prospectus or for additional
information, (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any
prospectus, or of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or of the
institution or, to the knowledge of the Company, threatening
of any proceedings for any such purpose, and (v) of the
issuance by the Reviewing Authority, any other Qualifying
Authority or any stock exchange of any order having the effect
of ceasing or suspending the distribution of the Shares or the
trading in the securities of the Company, or of the
institution or, to the knowledge of the Company, threatening
of any proceedings for any such purpose. The Company shall use
its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings
statement (which need not be audited) for the purposes of, and
to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act and the regulations thereunder.
(c) The Company has furnished or shall furnish to the Underwriters
and both Skadden, Arps and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, without charge,
signed copies of the Final Prospectuses and Registration
Statement (including all exhibits thereto and amendments
thereof) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required under Applicable
Securities Laws, as many copies of
-18-
the Final Prospectuses and Registration Statement and any
amendments thereof and supplements thereto as the Underwriters
may reasonably request.
(d) The Company shall cooperate with the Underwriters and their
counsel in endeavoring to qualify the Shares for offer and
sale to the extent required by law in connection with the
offering under the laws of the Qualifying Provinces and such
U.S. jurisdictions as the Underwriters may designate and shall
maintain such qualifications in effect so long as required for
the distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as a
condition thereof, to qualify as a foreign corporation or to
execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business
in any jurisdiction.
(e) Without the prior written consent of CIBC World Markets Corp.,
on behalf of the Underwriters, which consent is subject to
Section 12 of this Agreement, for a period of 90 days after
the closing of the proposed offering, the Company shall not,
nor shall it announce any intention to, directly or
indirectly, offer or sell, or enter into an agreement to offer
or sell, lend, pledge or otherwise transfer or dispose of any
Common Shares or any other securities convertible into,
exchangeable for, or otherwise exercisable into any securities
of the Company (except in connection with (i) the Company's
stock option plan, directors' fee payment plan or any other
securities compensation plan and securities issued upon the
exercise of rights thereunder, and (ii) in connection with
acquisitions, partnering or similar transactions, or
arrangements with the University of Tennessee Research
Corporation as will be described in the Final Prospectuses,
provided that such shares issued in connection with such
transactions or arrangements are subject to restrictions on
resale prior to the end of such 90 day period).
(f) Without the prior written consent of CIBC World Markets Corp.,
on behalf of the Underwriters (such consent not to be
unreasonably withheld), which consent is subject to Section 12
of this Agreement, for a period of 30 days after the closing
of the proposed offering, no director or executive officer of
the Company shall, nor shall they announce any intention to,
directly or indirectly, make any offer, sale, assignment,
transfer, encumbrance, contract to sell, grant of an option to
purchase or other disposition of any Common Shares
beneficially owned (within the meaning of Rule 13d-3 under the
▇▇▇▇ ▇▇▇) by them, other than Common Shares to be transferred
as a gift or gifts (provided that any donee thereof agrees in
writing to be bound by the terms hereof).
(g) The Company will apply for the conditional approval of the TSX
for the listing of the Shares and will use its best efforts to
satisfy any requirements of the TSX to the listing thereof
within the time specified in such approval. The Company will
use its best efforts to satisfy any requirements of The Nasdaq
Stock Market, Inc. relating to the listing of the Shares on
Nasdaq, including the requirement to file any necessary notice
or application.
-19-
(h) The Company shall apply the net proceeds from the offering of
the Shares in the manner set forth under "Use of Proceeds" in
the Final Prospectuses.
(i) The Company will furnish to each of the Underwriters prior to
or as soon as possible following the filing of the Canadian
Prospectus:
(i) a copy of the Canadian Prospectus signed and
certified as required by the Canadian securities laws
applicable in the Qualifying Provinces; and
(ii) a copy of any other document required to be filed by
the Company in compliance with the Canadian
securities laws.
(j) During the period from the date of this Agreement to the
completion of distribution of the Shares, the Company shall
promptly notify the Underwriters in writing of:
(i) any material change (actual, anticipated,
contemplated or threatened, financial or otherwise)
known to it in the business, affairs, operations,
assets, liabilities (contingent or otherwise) or
capital of the Company and its Subsidiaries taken as
a whole; or
(ii) any material fact which has arisen or been discovered
and would have been required to have been stated in
the Final Prospectuses had the fact arisen or been
discovered on, or prior to, the date of such
document; and
(iii) any change in any material fact (which for the
purposes of this Agreement shall be deemed to include
the disclosure of any previously undisclosed material
fact):
(A) contained in the Canadian Prospectus or any
Canadian Amendment or Supplement, which fact or
change is, or may be, of such a nature as to render
any statements in the Canadian Prospectus or any
Canadian Amendment or Supplement misleading or untrue
or which would result in a misrepresentation (as
defined in the SECURITIES ACT (British Columbia)) in
the Final Prospectuses or which would result in the
Final Prospectuses not complying (to the extent that
such compliance is required) with the Canadian
securities laws; or
(B) which results in it being necessary to amend the
Registration Statement or to amend or supplement the
U.S. Prospectus in order that the U.S. Prospectus
will not include any untrue statement of a material
fact or omit to state a material fact necessary in
order to make the statements therein, in the case of
the Registration Statement, not misleading, and in
the case of the U.S. Prospectus, in the light of the
circumstances under which such statements are made,
not misleading, or makes it necessary to amend or
supplement the Registration Statement or the U.S.
Prospectus to comply with the requirements of the
1933 Act and the 1933 Act Rules.
-20-
The Company shall promptly, and in any event within any
applicable time limitation, comply, to the reasonable satisfaction of the
Underwriters, with all applicable filings and other requirements under the
Applicable Securities Laws as a result of such fact or change. However, the
Company shall not file any Amendment or Supplement or other document without
first obtaining approval from the Underwriters, after consultation with the
Underwriters with respect to the form and content thereof, which approval will
not be unreasonably withheld or delayed. The Company shall in good faith discuss
with the Underwriters any fact or change in circumstances (actual, anticipated,
contemplated or threatened, financial or otherwise) which is of such a nature
that there is reasonable doubt whether written notice need be given under this
paragraph.
(k) If during the period of distribution to the public of the
Shares, there shall be any change in Applicable Securities
Laws which, in the reasonable opinion of the Underwriters,
requires the filing of an Amendment or Supplement, the Company
shall, to the satisfaction of the Underwriters, acting
reasonably, promptly prepare and file such Amendment or
Supplement with the Qualifying Authorities in each of the
Qualifying Provinces where such filing is required and with
the SEC, as applicable.
(l) When the Company is required to prepare or prepares any
Amendment or Supplement, the Company shall also prepare and
deliver promptly to each of the Underwriters signed and
certified copies of any Amendment or Supplement which have not
been previously delivered. The Amendment or Supplement shall
be in form and substance satisfactory to the Underwriters
acting reasonably. Concurrently with the delivery of any
Amendment or Supplement, the Company shall deliver to each of
the Underwriters, with respect to such Canadian Amendment or
Supplement, documents similar to that referred to in Section
6(i). The Company shall promptly furnish the Underwriters,
without charge, with commercial copies of such Canadian
Amendment or Supplement, in such quantities and at such cities
as the Underwriters may from time to time reasonably request.
(m) The Company shall cause commercial copies of the Supplemented
PREP Prospectus and the U.S. Supplemented Prospectus to be
delivered to the Underwriters without charge, in such numbers
and in such cities as the Underwriters may reasonably request
by oral instructions to the printer of the Final Prospectuses
given forthwith after the Underwriters have been advised that
the Company has complied with Applicable Securities Laws with
respect to the filing thereof. Such delivery shall be effected
as soon as possible and, in any event, on or before a date one
business day after compliance with Applicable Securities Laws
with respect to the filing thereof.
(n) The Company, during the period when the Final Prospectuses are
required to be delivered under the 1933 Act or the 1934 Act or
under applicable Canadian securities laws, will file all
documents required to be filed by the Company with (i) the SEC
pursuant to the 1934 Act within the time periods required by
the 1934
-21-
Act and the 1934 Act Rules, and (ii) with the Province of
British Columbia, and each of the other Qualifying Provinces,
in accordance with applicable Canadian securities laws.
(o) Prior to the Closing Date, the Company will issue no press
release or other communications directly or indirectly and
hold no press conference with respect to the Company, the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of any of them, or the offering
of the Shares without the prior written consent of the
Underwriters, such consent not to be unreasonably withheld or
delayed, unless in the judgment of the Company and its
counsel, and after notification to the Underwriters, such
press release or communication is required by law.
7. EXPENSES.
--------
Whether or not the transactions herein contemplated shall be
completed, the Company shall pay all expenses of or incidental to the delivery
and sale of the Shares and of or incidental to all other matters in connection
with the transactions herein set out, including, without limitation, (i) the
cost of any institutional and retail roadshows, (ii) expenses payable in
connection with the qualification of the Shares for sale to the public, (iii)
the fees and expenses of the Company's counsel, accountants and other advisors,
(iv) all advertising expenses (other than the usual "TOMBSTONE" advertisement
placed by the Underwriters), (v) all costs incurred in connection with the
preparation, printing and delivery of the Preliminary Prospectuses, Registration
Statement, Final Prospectuses and Amendments or Supplements, including
commercial copies thereof, and (vi) the costs of the review of the offering with
the National Association of Securities Dealers, Inc., including filing fees and
reasonable fees and disbursements of the Underwriters' U.S. Counsel in
connection therewith and in connection with any blue sky survey and the
registration of the Shares under state blue sky securities laws. Except as
provided in this Section 7, the Underwriters will pay their own costs and
expenses, including the fees of their counsel.
8. INDEMNIFICATION.
---------------
(a) COMPANY'S INDEMNITY
The Company agrees to indemnify and save harmless the
Underwriters and their respective affiliates, directors, officers, employees and
agents, and each person who controls any Underwriter (including, without
limitation, each person who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the ▇▇▇▇ ▇▇▇) from and against all
liabilities, claims, losses, damages and reasonable expenses (including without
limitation any legal fees or other expenses reasonably incurred by such
Underwriters in connection with defending or investigating any of the above but
excluding any loss of profits and other consequential damages), in any way
caused by, or arising directly or indirectly from, or in consequence of:
-22-
(i) any information or statement in the Canadian
Preliminary Prospectus, the Canadian Prospectus or
any Amendment or Supplement thereto (other than any
information or statement relating solely to the
Underwriters or furnished to the Company by the
Underwriters expressly for use therein) being or
being alleged to be a misrepresentation (as defined
in the SECURITIES ACT (British Columbia)) or untrue,
false or misleading;
(ii) any untrue statement or alleged untrue statement of a
material fact in the Registration Statement or any
amendment thereto, or any omission or alleged
omission of a material fact required to be stated
therein or necessary to make the statements therein
not misleading or any untrue statement or alleged
untrue statement of a material fact in the U.S.
Preliminary Prospectus, U.S. Prospectus or any
Amendment or Supplement thereto or any omission or
alleged omission of a material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading (other than, in
each case, any statement or omission relating solely
to the Underwriters or furnished to the Company by
the Underwriters expressly for use therein);
(iii) any order made or inquiry, investigation or
proceeding (formal or informal) commenced or
threatened by any officer or official of any
securities commission or other regulatory authority
based upon the circumstances described in clauses (i)
or (ii) above which operates to prevent or restrict
trading in or distribution of the Shares in any of
the Qualifying Provinces or in the United States;
(iv) the breach of any representations, warranties or
covenants of the Company contained herein or
delivered pursuant hereto; or
(v) the non-compliance or alleged non-compliance by the
Company with any requirement of Applicable Securities
Laws in connection with the transactions contemplated
herein, including, without limitation, non-compliance
with any statutory requirement to make any document
available for inspection.
This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) UNDERWRITERS' INDEMNITY
Each of the Underwriters agrees severally and not jointly to
indemnify and save harmless the Company and its affiliates, directors, officers,
employees and agents, and each person who controls the Company (including,
without limitation, each person who controls the Company within the meaning of
section 15 of the 1933 Act or section 20 of the ▇▇▇▇ ▇▇▇) from and against all
liabilities, claims, losses, damages and reasonable expenses (including without
-23-
limitation any legal fees or other expenses reasonably incurred by them in
connection with defending or investigating any of the above but excluding any
loss of profits and other consequential damages), in any way caused by, or
arising directly or indirectly from, or in consequence of any information or
statement described in clauses 8(a)(i) and (ii) contained in the Final
Prospectuses or Registration Statement or any Amendment or Supplement thereto
regarding facts relating solely to the Underwriters or furnished to the Company
by the Underwriters expressly for use therein.
(c) NOTIFICATION OF CLAIMS
If any matter or thing contemplated by Section 8(a) or (b)
(any such matter or thing being referred to as a "CLAIM") is asserted against
any person or company in respect of which indemnification is or might reasonably
be considered to be provided, such person or company (the "INDEMNIFIED PARTY")
will notify the indemnifier hereunder (the "INDEMNIFIER") as soon as possible of
the nature of such Claim (but the omission so to notify the Indemnifier of any
potential Claim shall not relieve the Indemnifier from any liability which it
may have to any Indemnified Party and any omission so to notify the Indemnifier
of any actual claim shall affect the Indemnifier's liability only to the extent
that it is materially prejudiced by that failure). The Indemnifier shall be
entitled to participate in and, to the extent that it shall wish, to assume the
defence of any suit brought to enforce such Claim; provided, however, that the
defence shall be conducted through legal counsel acceptable to the Indemnified
Party, that no settlement of any such Claim or admission of liability may be
made by the Indemnifier or the Indemnified Party without the prior written
consent of the other parties, acting reasonably, and the Indemnifier shall not
be liable for any settlement of any such Claim unless it has consented, which
consent shall not be unreasonably withheld or delayed in writing to such
settlement or unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnified Party from all liability arising out of
such Claim or (ii) does not include a statement as to or an admission of fault,
culpability or failure to act, by or on behalf of any Indemnified Party or the
Indemnifier.
(e) RETAINING COUNSEL
In any such Claim, the Indemnified Party shall have the right
to retain other counsel to act on its behalf, provided that the reasonable fees
and disbursements of such counsel shall be paid by the Indemnified Party unless
(i) the Indemnifier fails to assume the defence of such suit on behalf of the
Indemnified Party in accordance with this Agreement within 15 days of receiving
written notice of such suit; (ii) the Indemnifier and the Indemnified Party
shall have mutually agreed to the retention of the other counsel; or (iii) the
named parties to any such Claim (including any added third or impleaded party)
include the Indemnified Party and the Indemnifier and the Indemnified Party
shall have been advised by counsel that the representation of all parties by the
same counsel would be inappropriate due to the actual or potential differing
interests between them, including due to the availability of one or more legal
defenses which are different from or in addition to those available to the
Indemnifier (in which case the Indemnifier shall not have the right to direct
the defense of such action on behalf of the Indemnified Party), in each of which
cases the fees and expenses of counsel shall be at the expense of the
Indemnifier. In no event shall the Indemnifier be liable to pay the fees and
disbursements of more than one firm of
-24-
separate counsel for all Indemnified Parties and, in addition, one firm of local
counsel in each applicable jurisdiction.
(f) RIGHTS AND REMEDIES
The Company acknowledges that all information or statements in
the Final Prospectuses, the Registration Statement or any Amendment or
Supplement, or any omission or alleged omission in any information or statement
in the Final Prospectuses, the Registration Statement or any Amendment or
Supplement that is necessary to make any statement therein not misleading in
light of the circumstances in which it was made, other than the information
which was furnished to the Company by the Underwriters, forms part of the
Company's disclosure.
It is the intention of the Company to constitute the
Underwriters trustees for the Underwriters' affiliates, directors, officers,
employees and agents of the covenants of the Company under this Section 8 with
respect to the Underwriters' affiliates, directors, officers, employees and
agents and the Underwriters agree to accept such trust and to hold and enforce
such covenants on behalf of such persons.
It is the intention of the Underwriters to constitute the
Company trustee for the Company's affiliates, directors, officers, employees and
agents of the covenants of the Underwriters under this Section 8 with respect to
the Company's affiliates, directors, officers, employees and agents and the
Company agrees to accept such trust and to hold and enforce such covenants on
behalf of such persons.
9. CONTRIBUTION.
------------
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 8(a) or (b)
is due in accordance with its terms but for any reason is held to be unavailable
to or insufficient to hold harmless an Indemnified Party under Section 8(a) or
(b), then each indemnifying party shall contribute to the aggregate losses,
claims, damages and liabilities (including any investigation, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting any contribution received by any person entitled hereunder to
contribution from any person who may be liable for contribution) to which the
Indemnified Party may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Underwriters and the Company from the
offering of the Shares or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 8 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters, where the
indemnification provided for in Section 8(a) or (b) is unavailable, shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of Underwriting Fees but before deducting expenses) received by the
Company, as set forth in the table on the cover page of the Final Prospectuses,
bear to (y) the Underwriting Fees received by
-25-
the Underwriters, as set forth in the table on the cover page of the Final
Prospectuses. The relative fault of the Company or the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact related to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 9, in no case shall any Underwriter be liable or responsible for
any amount in excess of the Underwriting Fee applicable to the Shares purchased
by such Underwriter hereunder; provided, however, that no person guilty of
fraud, fraudulent misrepresentation or negligence shall be entitled to
contribution from any person who was not guilty of such conduct. For purposes of
this Section 9, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act shall
have the same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of the Section 15 of the 1933
Act or Section 20(a) of the 1934 Act, each officer of the Company who shall have
signed the Registration Statement or Final Prospectuses and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to the immediately preceding sentence of this Section 9. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
9, notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section 9. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to their respective underwriting commitments and not joint.
10. TERMINATION.
-----------
This Agreement may be terminated with respect to the Shares to
be purchased on a Closing Date by the Underwriters by notifying the Company at
any time at or before a Closing Date in the absolute discretion of the
Underwriters if: (i) there has occurred any material adverse change in the
securities markets or any event, act or occurrence that has materially
disrupted, or in the opinion of the Underwriters, will in the future materially
disrupt, the securities markets or there shall be such a material adverse change
in general financial, political or economic conditions or the effect of
international conditions on the financial markets in the United States or Canada
is such as to make it, in the judgment of the Underwriters, inadvisable or
impracticable to market the Shares or enforce contracts for the sale of the
Shares; (ii) there has occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States or Canada is such as to make it, in the judgment of
the Underwriters, inadvisable or impracticable to market the Shares or enforce
contracts for the sale of the Shares; (iii) trading in the Shares or any
securities of the Company
-26-
has been suspended or materially limited by the SEC or any Qualifying Authority
or trading generally on the TSX, the New York Stock Exchange, Inc., the American
Stock Exchange, Inc. or Nasdaq has been suspended or materially limited, or
minimum or maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by any of said
exchanges or by such system or by order of any Qualifying Authority, the SEC,
the National Association of Securities Dealers, Inc., or any other governmental
or regulatory authority; or (iv) a banking moratorium has been declared by any
Canadian or U.S. state, provincial or federal authority; or (v) there should
develop, occur or come into effect or existence any event, action, state,
condition or major financial occurrence of national or international consequence
or any law or regulation which in the opinion of the Underwriters seriously
adversely affects, or will seriously adversely affect, the financial markets or
the business, operations or affairs of the Company and its subsidiaries taken as
a whole; or (vi) in the judgment of the Underwriters, there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Preliminary Prospectuses or Final Prospectuses, any
material adverse change in the assets, properties, condition, financial or
otherwise, or in the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as a whole, whether or
not arising in the ordinary course of business.
If this Agreement is terminated pursuant to any of its
provisions, the Company shall not be under any liability to any Underwriter, and
no Underwriter shall be under any liability to the Company, except that (y) if
this Agreement is terminated by the Underwriters because of any failure, refusal
or inability on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company,
or to the other Underwriters for damages occasioned by its failure or refusal.
11. SUBSTITUTION OF UNDERWRITERS.
----------------------------
If one or more of the Underwriters shall fail (other than for
a reason sufficient to justify the cancellation or termination of this Agreement
under Section 10) to purchase on the Closing Date the Shares agreed to be
purchased on the Closing Date by such Underwriter or Underwriters, the remaining
Underwriters may find one or more substitute underwriters to purchase such
Shares or make such other arrangements as such remaining Underwriters may deem
advisable or one or more of the remaining Underwriters may agree to purchase
such Shares in such proportions as they agree upon, in each case upon the terms
set forth in this Agreement. If no such arrangements have been made by the close
of business on the business day following the Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on the Closing Date shall not exceed 10% of the
Shares that all the Underwriters are
-27-
obligated to purchase on the Closing Date, then each of the
nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their
respective obligations hereunder; provided, that in no event
shall the maximum number of Shares that any Underwriter has
agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 11 by more than 10% of the number of Shares
without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on the Closing Date shall exceed 10% of the
Shares that all the Underwriters are obligated to purchase on
the Closing Date, then the Company shall be entitled to five
additional business days within which they may, but are not
obligated to, find one or more substitute underwriters
reasonably satisfactory to the remaining Underwriters to
purchase such Shares upon the terms set forth in this
Agreement.
In any such case, the Underwriters shall have the right to
postpone the Closing Date for a period of not more than five business days in
order that necessary changes and arrangements (including any necessary
amendments or supplements to the Registration Statement or Final Prospectuses)
may be effected by the Underwriters and the Company. If the number of Shares to
be purchased on the Closing Date by such defaulting Underwriter or Underwriters
shall exceed 20% of the Shares that all the Underwriters are obligated to
purchase on the Closing Date, and none of the nondefaulting Underwriters or the
Company shall make arrangements pursuant to this Section 11 within the period
stated for the purchase of the Shares that the defaulting Underwriters agreed to
purchase, this Agreement shall terminate with respect to the Shares to be
purchased on the Closing Date without liability on the part of any nondefaulting
Underwriter to the Company and without liability on the part of the Company,
except in both cases as provided in Sections 7, 8 and 9. The provisions of this
Section 11 shall not in any way affect the liability of any defaulting
Underwriter to the Company or the nondefaulting Underwriters arising out of such
default. A substitute underwriter hereunder shall become an Underwriter for all
purposes of this Agreement.
12. COVENANTS OF UNDERWRITERS.
-------------------------
The Underwriters shall offer the Shares for sale to the public
through investment dealers and brokers duly licensed under applicable laws (the
Underwriters, together with such other investment dealers and brokers, are
collectively referred to herein as the "SELLING FIRMS"), only as permitted by
applicable securities laws, upon the terms and conditions set forth in the Final
Prospectuses and in this Agreement.
The Underwriters will not solicit offers to purchase or sell
the Shares so as to require registration thereof or the filing of a prospectus
with respect thereto under the laws of any jurisdiction other than the
Qualifying Provinces or the United States and will require each Selling Firm to
agree with the Underwriters not to so solicit or sell.
-28-
The Underwriters shall use all reasonable efforts to complete
and to cause the other Selling Firms to complete the distribution of the Shares
as soon as possible after the Closing Date.
The Underwriters shall notify the Company when, in their
opinion, the Underwriters and the other Selling Firms have ceased distribution
of the Shares and provide a breakdown of the number of Shares distributed in
each of the Qualifying Provinces where such breakdown is required for the
purpose of calculating fees payable to Qualifying Authorities.
To facilitate compliance with NASD Rule 2711(f)(4), CIBC World
Markets Corp. shall provide written notice to the Company and each of the other
Underwriters that is member of the NASD in advance of any consent given on
behalf of the Underwriters, pursuant to Section 6(e) or 6(f) of this Agreement,
to a waiver of the sales restrictions contained therein, and will not consent to
a waiver of such sales restrictions prior to 15 days after the publication or
distribution of any research report relating to the Company or the making of any
public appearance concerning the Company by an Underwriter that is member of the
NASD, unless such research report or public appearance, as applicable, is one to
which NASD Marketplace Rule 2711(f)(4) does not, pursuant to its terms, apply.
13. MISCELLANEOUS.
-------------
The respective agreements, representations, warranties,
indemnities and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement shall remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Sections 8 and 9 hereof, and shall survive delivery of
and payment for the Shares. The provisions of Sections 7, 8 and 9 shall survive
the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and, except as provided in Sections 8
and 9, no other person shall acquire or have any right under or by virtue of
this Agreement. The term "successors and assigns" shall not include any
purchaser of Shares from any Underwriter merely because of such purchase.
-29-
All notices and communications hereunder shall be in writing
and mailed or delivered or by telephone or telegraph if subsequently confirmed
in writing, (a) if to the Underwriters, c/o CIBC World Markets Corp. ▇▇▇ ▇▇▇▇
▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. and with a
copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, P.
O. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and (b) if to the Company, to ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: the President and to its Agent
for Service (as defined below) with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, 1200
Waterfront Centre, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P. O. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: ▇▇▇ ▇▇▇▇, Esq. and with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
By the execution and delivery of this Agreement, the Company
(i) acknowledges that it has or will by the Closing Time, by separate written
instrument, irrevocably designated and appointed CT Corporation System (or any
successor), (the "AGENT FOR SERVICE"), as its authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
this Agreement or the Shares, that may be instituted in any federal or state
court in the State of New York, or brought under federal or state securities
laws, and acknowledges that the Agent for Service has accepted such designation,
(ii) submits to the jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon the Agent for Service
(or any successor) and written notice of said service to the Company (mailed or
delivered to its Chief Executive Officer at its principal office in Vancouver,
Canada), shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding. The Company further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment of the Agent for Service in full force and effect so long as any of
the Shares shall be outstanding.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
This Agreement constitutes the entire agreement between the
Company and the Underwriters pertaining to the subject matter of this Agreement.
There are no warranties, conditions, or representations (including any that may
be implied by statute) and there are no agreements in connection with such
subject matter except as specifically set forth or referred to in this Agreement
or the Engagement Letter. No reliance is placed on any warranty, representation,
opinion, advice or assertion of fact made either prior to, contemporaneous with,
or after entering into this Agreement, or any amendment or supplement thereto,
by any party to this Agreement or its directors, officers, employees or agents,
to any other party to this Agreement or its directors, officers, employees or
agents, except to the extent that the same has been reduced to writing and
included as a term of this Agreement, and none of the parties to this
-30-
Agreement has been induced to enter into this Agreement or any amendment or
supplement by reason of any such warranty, representation, opinion, advice or
assertion of fact. Accordingly, there shall be no liability, either in tort or
in contract, assessed in relation to any such warranty, representation, opinion,
advice or assertion of fact, except to the extent contemplated above.
Each of the provisions contained in this Agreement is distinct
and severable and a declaration of invalidity or unenforceability of any such
provision or part thereof by a court of competent jurisdiction shall not affect
the validity or enforceability of any other provision hereof. To the extent
permitted by applicable law, the parties waive any provision of law which
renders any provision of this Agreement invalid or unenforceable in any respect.
The parties shall engage in good faith negotiations to replace any provision
which is declared invalid or unenforceable with a valid and enforceable
provision, the economic effect of which comes as close as possible to that of
the invalid or unenforceable provision which it replaces.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
-31-
DRAFT
This Agreement may be signed by facsimile in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
ID BIOMEDICAL CORPORATION
By:
----------------------
Name:
Title:
CIBC WORLD MARKETS CORP.
By:
----------------------
Name:
Title:
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC. CANACCORD CAPITAL CORPORATION
By: By:
---------------------- --------------------------
Name: Name:
Title: Title:
RBC DOMINION SECURITIES INC. ▇▇▇▇ ▇▇▇▇ & CO., INC
By: By:
---------------------- --------------------------
Name: Name:
Title: Title:
▇▇▇▇▇ FARGO SECURITIES, LLC
By:
----------------------
Name:
Title:
SCHEDULE A
UNDERWRITERS NUMBER OF
SHARES TO BE PURCHASED
CIBC World Markets Corp. o
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ o
Canaccord Capital Corporation o
RBC Dominion Securities Inc. o
▇▇▇▇ ▇▇▇▇ & Co., Inc. o
Wells Fargo Securities, LLC o
-----------------------
TOTAL o
-----------------------
-----------------------
EXHIBIT A
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
PURSUANT TO SECTION 5(i)
(i) Each of the Company and ID Biomedical Corporation of Quebec (the
"CANADIAN SUBSIDIARY") are validly existing under the laws of its
jurisdiction of incorporation. Each of the Company and the Canadian
Subsidiary is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of
its assets or properties (owned, leased or licensed) or the nature of
its businesses makes such qualification necessary, except for such
jurisdictions where the failure to so qualify, individually or in the
aggregate, would not have a Material Adverse Effect.
(ii) Each of the Company and the Canadian Subsidiary has all requisite
corporate power and authority to own, lease and license its assets and
properties and conduct its business as now being conducted and as
described in the Final Prospectuses and with respect to the Company to
enter into, deliver and perform this Agreement and to issue and sell
the Shares.
(iii) The Company has authorized share capital as set forth in Section 4(o)
and the certificates evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by the Company. The
Shares, when issued and sold pursuant to this Agreement, will be duly
and validly issued, outstanding, fully paid and nonassessable and to
the best of such counsel's knowledge, none of them will have been
issued in violation of any preemptive or other similar right. The
Common Shares conform in all material respects to the descriptions
thereof contained in the Final Prospectuses.
(iv) The issued and outstanding shares of the Canadian Subsidiary held
directly or indirectly by the Company have been duly authorized and
validly issued, are fully paid and nonassessable and, based solely upon
counsel's review of the minute books of the Canadian Subsidiary and a
personal property security search in the jurisdiction of the head
office of the Canadian Subsidiary, are owned by the Company, free and
clear of any perfected security interest or, to the best of such
counsel's knowledge, any other security interests, liens, encumbrances
or claims, other than those described in the Final Prospectuses.
(v) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares to be sold by it.
This Agreement has been duly and validly authorized, and to the extent
that execution and delivery are matters governed by the laws of the
Province of British Columbia and the laws of Canada applicable therein,
executed and delivered by the Company.
(vi) To the best of such counsel's knowledge, the Company is not in
violation of any term or provision of its constating documents and is
not in violation of any terms or provisions of
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any judgment, decree, order, statute, rule or regulation, where the consequences
of such violation, individually or in the aggregate, would have a Material
Adverse Effect.
(vii) No consent, approval, authorization or order of any court or
governmental agency or regulatory body in Canada is required for the
execution, delivery or performance of this Agreement by the Company or
the consummation of the transactions contemplated hereby, except such
as have been obtained under Canadian securities laws and the
requirements of the TSX in connection with the purchase and
distribution of the Shares by the Underwriters.
(viii) To the best of such counsel's knowledge, there is no litigation or
governmental or other proceeding or investigation, before any court or
before or by any public body or board pending or threatened against, or
involving the assets, properties or businesses of, the Company or any
of the Subsidiaries which would have a Material Adverse Effect, except
as disclosed in the Final Prospectuses.
(ix) The statements in the Final Prospectuses under the captions "Certain
Canadian Federal Income Tax Considerations," and "Description of Share
Capital," insofar as such statements constitute a summary of documents
referred to therein or matters of law, are fair summaries in all
material respects and accurately present the information called for
with respect to such documents and matters.
(x) All of the documents incorporated by reference in the Canadian
Prospectus have been filed in each of the Qualifying Provinces.
(xi) The Canadian Preliminary Prospectus, Canadian Prospectus and each
Amendment or Supplement (except for the financial statements and
schedules and other financial and statistical data included therein, as
to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of Canadian securities laws.
(xii) All necessary documents and proceedings have been filed and taken and
all other legal requirements have been fulfilled under the laws of each
of the Qualifying Provinces to qualify the distribution of the Shares
to be offered and sold to the public in each of the Qualifying
Provinces by or through registrants, investment dealers or brokers
registered under applicable legislation of such provinces who have
complied with the relevant provisions of such legislation.
(xiii) Computershare Trust Company of Canada, at its office in the City of
Vancouver, has been duly appointed as the registrar and transfer agent
for the Common Shares in Canada.
(xiv) The Shares have been conditionally approved for listing on the TSX.
(xv) The form of share certificate representing the Common Shares has been
duly approved by the Company and complies with all applicable statutory
requirements, with any applicable requirements of the constating
documents of the Company, with the provisions of the
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COMPANY ACT (British Columbia) relating thereto and the requirements
of the TSX for share certificates.
(xvi) The Company is a "reporting issuer" or the equivalent under the
securities legislation of each of the Qualifying Provinces (where such
concept exists) and is not on the list of defaulting issuers maintained
under such legislation.
(xvii) The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated in this Agreement and the Registration Statement, the U.S.
Prospectus and the Canadian Prospectus (including the authorization,
issuance, sale and delivery of the Shares and the use of proceeds as
described in the U.S. Prospectus and the Canadian Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement do not and will not conflict with,
result in a breach of or create a state of facts which, whether with or
without the giving of notice or lapse of time or both, will result in a
breach or violation of any of the terms, conditions or provisions of or
result in the creation or imposition of any lien, charge, or
encumbrance upon any property or assets of the Company or any of its
subsidiaries under (A) the constating documents of the Company or any
resolution of the directors or shareholders of the Company or the
Canadian Subsidiary; (B) any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject, as set forth in
a Schedule to such opinion (except for such conflicts, breaches,
defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect); (C) any applicable Canadian federal or
British Columbia statute or regulation; or (D) to the knowledge of such
counsel, any judgment, order or decree of any government, governmental,
regulatory or administrative agency, authority, commission or
instrumentality or court having jurisdiction over the Company or any of
its properties, assets or operations.
(xviii) No order having the effect of ceasing or suspending the distribution of
the Shares or the trading in the Common Shares has been issued by any
securities regulatory authority in the Province of British Columbia or
the other Qualifying Provinces and to the knowledge of such counsel, no
proceedings for that purpose have been instituted or are pending or
contemplated.
(xix) To the knowledge of such counsel, except for the University of
Tennessee Research Foundation, there are no persons with registration
rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act or qualified for distribution under
applicable Canadian provincial securities laws.
(xx) To the knowledge of such counsel, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Canadian
Prospectus other than those described or referred to therein or filed
or incorporated by reference therein.
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(xxi) The documents incorporated by reference in the Canadian Prospectus as
amended or supplemented (other than the financial statements and other
financial data included or incorporated or deemed to be incorporated
therein, as to which we express no opinion), when they were filed with
the Reviewing Authority appear on their face to be appropriately
responsive to the requirements of the securities laws, rules and
regulations of the Province of British Columbia as interpreted and
applied by the Reviewing Authority.
(xxii) The choice of New York Law as the governing law of the Agreement is a
valid and effective choice of law that would be recognized and applied
by a court of competent jurisdiction in British Columbia (a "BRITISH
COLUMBIA COURT") in any proceedings that are properly brought before a
British Columbia Court; PROVIDED that:
(a) such choice of law is bona fide (in the sense that it was not
made with a view to avoiding the consequences of the law of
any other jurisdictions) and is not contrary to public policy,
as such term is understood under the laws of British Columbia
and the laws of Canada applicable therein ("PUBLIC POLICY"),
(b) the British Columbia Court would apply British Columbia
procedural law to those proceedings, and
(c) the laws of the State of New York ("NEW YORK LAW") are
specifically pleaded and proved as a fact in the British
Columbia Court,
except to the extent that:
(d) the relevant New York Law is found by the British Columbia
Court to be procedural in nature;
(e) the relevant New York Law is found by the British Columbia
Court to be of a revenue, expropriatory, penal or similar
nature; or
(f) the application of the relevant New York Law in the British
Columbia Court is found by such court to be inconsistent with
Public Policy.
(xxiii) The Company has the corporate power to submit to the non-exclusive
jurisdiction of the federal or state courts located in the Borough of
Manhattan in the City of New York (the "NEW YORK COURTS") and has taken
all necessary corporate action under the laws of the Province of
British Columbia and the federal laws of Canada applicable in British
Columbia to validly appoint CT Corporation System as its authorized
agent for service for the purposes described in the Agreement.
(xxiv) A final and conclusive civil judgment in personam for a sum certain
(that is not to be determined at a future time) obtained in a New York
Court of competent jurisdiction against the Company in connection with
any action arising out of or relating to the Agreement, which judgment
is not impeachable as void or voidable or otherwise ineffective under
New York Law, would be recognized and could be enforced in a British
A-4
Columbia Court by an action or counterclaim for the amount due under
such judgment; PROVIDED that:
(a) the New York Court had jurisdiction over the applicable
party(s) according to New York Law and either there was a real
and substantial connection between the parties, the cause of
action and New York, or the New York judgment debtor has
attorned to the jurisdiction of the New York Court, so that
the New York Court also has jurisdiction over the New York
proceeding or the New York judgment debtor according to the
Laws;
(b) the New York judgment was not obtained in breach of the
principles of natural justice and does not result in a
substantial injustice so that a court in British Columbia
would not consider its enforcement unfair;
(c) there was no manifest error on the face of such judgment;
(d) the judgment was not obtained by fraud;
(e) the judgment and the enforcement thereof would not be
offensive to Public Policy;
(f) enforcement of such judgment would not constitute, directly or
indirectly, the enforcement of foreign revenue or tax laws, a
foreign expropriation or confiscation, or a foreign penal law;
(g) such judgment was not obtained contrary to an order made by
the Attorney General of Canada under the FOREIGN
EXTRATERRITORIAL MEASURES ACT (Canada);
(h) no order has been made by the Competition Tribunal under the
COMPETITION ACT (Canada) relating to the enforcement of the
judgment (as a result of the finding of the Competition
Tribunal of an adverse effect, restraint or injury to
competition in Canada or foreign trade and commerce of
Canada);
(i) no stay of execution of the judgment has been ordered by the
New York Court;
(j) a sum of money will be converted by a British Columbia Court
into Canadian currency in accordance with the FOREIGN MONEY
CLAIMS ACT (British Columbia); and
(k) there has been compliance with the LIMITATIONS ACT (British
Columbia) in commencing the action against the judgment debtor
to enforce the judgment in the British Columbia Court.
(xxv) We have no reason to believe that the recognition and enforcement of
the choice of New York Law in the Agreement, or the recognition of a
judgment of a New York Court of the type described in paragraph (xxiv)
above, (except as to provisions in the Agreement providing for
indemnity or contribution, as to which no opinion is expressed) would
be contrary to Public Policy.
A-5
(xxvi) No stamp or other issuance or transfer taxes or duties or withholding
taxes are payable by or on behalf of the Underwriters to the Government
of Canada or the Government of British Columbia or any political
subdivision thereof or any authority or agency thereof or therein
having power to tax in connection with (A) the issue, sale and delivery
of the Shares by the Company to or for the respective accounts of the
Underwriters or (B) the sale and delivery outside Canada by the
Underwriters of the Shares in the manner contemplated in this
Agreement.
(xxvii) We have participated in the preparation of the Canadian Prospectus
(including the documents incorporated by reference therein or annexed
thereto) and in conferences with officers and other representatives of
the Company, U.S. counsel to the Company, representatives of the
independent chartered accountants for the Company, representatives of
the Underwriters and U.S. and Canadian counsel to the Underwriters, at
which the contents of the Registration Statement and the U.S.
Prospectus (including the documents incorporated by reference therein
or annexed thereto) and related matters were discussed, and although we
have not undertaken to investigate or verify independently and are not
passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Canadian
Prospectus except as set forth in paragraph (ix) above, on the basis of
the foregoing no fact has come to our attention that causes us to
believe that the Canadian Prospectus (except for the financial
statements and other financial or statistical data included or
incorporated therein, annexed thereto or omitted therefrom, as to which
we do not comment), at the time the Canadian Prospectus was issued, at
any time prior to the Closing Time any such amended or supplemented
prospectus was issued and at the Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
A-6
EXHIBIT B
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP
PURSUANT TO SECTION 5(j)
(i) Each of the U.S. Subsidiaries is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation.
(ii) The issued and outstanding shares of the U.S. Subsidiaries held by the
Company have been duly authorized and validly issued, are fully paid
and non-assessable and, except as disclosed in the Registration
Statement are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, or claim.
(iii) Pursuant to the rules and regulations of the SEC, the Registration
Statement became effective under the 1933 Act on September o, 2003. The
Form F-X of the Company was filed with the SEC prior to the
effectiveness of the Registration Statement. To the conscious awareness
of facts or other information (the "ACTUAL KNOWLEDGE") of ▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and Shemina Kanji (the "PRIMARY LAWYER
GROUP"), no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending under the 1933 Act.
(iv) The Registration Statement (and the U.S. Prospectus (except in each
case for the financial statements and schedules and other financial and
statistical data included or incorporated therein or omitted therefrom,
as to which we express no opinion)) complies as to form in all material
respects with the applicable requirements of the 1933 Act and the
regulations thereunder; the Form F-X complies as to form in all
material respects with the applicable requirements of the 1933 Act and
the regulations thereunder.
(v) To Actual Knowledge of the Primary Lawyer Group, we do not know of any
amendment to the Registration Statement required to be filed and there
are no contracts or documents of a character required to be filed as an
exhibit to the Registration Statement pursuant to the requirements of
Form F-10 that are not so filed.
(vi) No consent, approval, authorization, order, registration, qualification
of or with any U.S. court or governmental agency or body is required
for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by the Agreement, except the
registration under the 1933 Act of the Shares, and approvals for
listing on Nasdaq, and such consents, approvals, authorizations,
registrations or qualifications as may be required by the National
Association of Securities Dealers Inc. or under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(vii) The statements set forth in the U.S. Prospectus under the caption
"Certain United States Federal Income Tax Considerations," insofar as
they purport to describe matters of law or
B-1
legal conclusions with respect thereto, have been prepared or reviewed
by us and are correct in all material respects and fairly summarize the
information presented therein
(viii) Compliance by the Company with all of the provisions of the Agreement
and the consummation of the transactions contemplated therein will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute or any order,
rule or regulation known to the Primary Lawyer Group of any U.S. court
or governmental agency or body having jurisdiction over the Company or
any of its U.S. Subsidiaries or any of their respective properties, in
each case except for such breaches or violations that would not
reasonably be expected to have a Material Adverse Effect.
(ix) The Shares are eligible for listing on Nasdaq.
(x) The Company is not, and after giving effect to the Sale of the Shares
and the use of proceeds thereof as described in the U.S. Prospectus
will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(xi) We have participated in the preparation of the Registration Statement
and the U.S. Prospectus (excluding the documents incorporated by
reference therein or annexed thereto although we have reviewed such
documents) and in conferences with officers and other representatives
of the Company, Canadian counsel for the Company, representatives of
the independent chartered accountants for the Company, representatives
of the Underwriters, and U.S. and Canadian counsel for the
Underwriters, at which the contents of the Registration Statement and
the U.S. Prospectus (including the documents incorporated by reference
therein or annexed thereto) and related matters were discussed, and
although we have not undertaken to investigate or verify independently
and are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the U.S. Prospectus except as set forth in
paragraph (vii) above, on the basis of the foregoing no fact has come
to our attention that causes us to believe that, (A) the Registration
Statement (except for the financial statements and other financial or
statistical data included or incorporated therein, annexed thereto or
omitted therefrom, as to which we do not comment), at the time it
became effective under the 1933 Act, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
(B) the U.S. Prospectus (except for the financial statements and other
financial or statistical data included or incorporated therein, annexed
thereto or omitted therefrom, as to which we do not comment), at the
time the U.S. Prospectus was issued, at any time prior to the Closing
Time any such amended or supplemented prospectus was issued and at the
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
B-2
EXHIBIT C
FORM OF OPINION OF SEED IP LAW GROUP LLP
PURSUANT TO SECTION 5(k)
(i) To our knowledge, the Company has not received notice of a claim of
infringement of any patents held by others. To our knowledge, there is
no pending or threatened claim or suit by others that the Company is
infringing another's patent.
(ii) Attached as Schedule A to this opinion is a list of the Company's U.S.
patents and pending U.S. patent applications ("U.S. PATENT RIGHTS")
with respect to which we have been retained by the Company, and a list
of the Company's non-U.S. patents and pending non-U.S. patent
applications ("NON-U.S. PATENT RIGHTS") with respect to which we have
been retained by the Company. To our knowledge, each of the U.S. or
non-U.S. applications for which we represent the Company (U.S.
applications and non-U.S. applications listed in Schedule A,
collectively "APPLICATIONS"), and each of the U.S. patents and non-U.S.
patents listed in Schedule A, was properly filed in conformance with
the rules of the U.S. Patent and Trademark Office ("USPTO") or relevant
non-U.S. Patent Office, and we are not aware of any material defect of
form in the preparation or filing of the Applications. To our
knowledge, the Applications are being diligently prosecuted. To our
knowledge, the Company and/or its licensors are listed on the records
of the USPTO or appropriate foreign patent offices as the sole assignee
of record, or together as joint assignees of record, for the
Applications.
(iii) To our knowledge, for each of the U.S. patents and U.S. patent
applications listed on Schedule A attached to this opinion, we have
disclosed or intend to disclose to the USPTO all information known and
believed to be material to patentability under the extant 37 C.F.R.
ss.1.56. To our knowledge, the Information Disclosure Statements
("IDSs") filed with the USPTO for the U.S. applications and the U.S.
patents listed on Schedule A complied with applicable law and
regulations. To our knowledge, all information submitted to the USPTO
in the IDSs has been accurate and without misrepresentation.
C-1
EXHIBIT D
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ AND CREW LLP
PURSUANT TO SECTION 5(k)
(i) Attached as Schedule A to this opinion is a list of the U.S. patents
and pending U.S. patent applications (the "U.S. PATENT RIGHTS") with
respect to which we have been retained by the Company. To our
knowledge, the U.S. Patent Rights are either licensed, owned, or
co-owned by the Company, and either (a) an assignment from the
inventors to the Company, licensor, or the other co-owner has been
recorded or is being recorded in the United States Patent and Trademark
Office, (b) an assignment from the inventors to an intervening assignee
and then to the Company, licensor, or the other co-owner has been
recorded or is being recorded in the United States Patent and Trademark
Office, or (c) the named inventors of the U.S. Patent Rights have
either (i) executed an assignment to the Company, licensor, or the
other co-owner, or (ii) are under an obligation to execute an
assignment to the Company, licensor, or the other co-owner. To our
knowledge, there are no claims to any ownership interests on any of
the U.S. Patent Rights by any party other than the Company, licensor,
or the other co-owners.
(ii) Attached as Schedule B to this opinion is a list of the non-U.S.
patents and pending non-U.S. patent applications (the "Non-U.S. Patent
Rights") with respect to which we have been retained by the Company. To
our knowledge, the Non-U.S. Patent Rights are either licensed, owned or
co-owned by the Company, and the named inventors of the Non-U.S. Patent
Rights have either (a) executed an assignment to the Company, licensor,
or the other co-owner, or (b) are under an obligation to execute an
assignment to the Company, licensor, or the other co-owner. To our
knowledge, there are no claims to any ownership interests on any of the
Non-U.S. Patent Rights by any party other than the Company, licensor,
or the other co-owner.
(iii) To our knowledge, for each of the United States patents and patent
applications reflected on Schedule A to this opinion, we have disclosed
or intend to disclose to the United States Patent and Trademark Office
all information known and believed to be material to patentability
under the extant 37 C.F.R. ss.1.56.
(iv) To our knowledge, the Company has not received any claim of
infringement of any patents held by others, and to our knowledge, there
is no pending or threatened action, suit, proceeding or claim by others
that the Company is infringing a patent. To our knowledge, there are no
material defects of form in the preparation of the filings of the US
patent applications and they are being diligently prosecuted.
(v) To our knowledge, there are no pending or threatened legal or
governmental proceedings relating to the U.S. Patent Rights, other than
proceedings before the United States Patent and Trademark Office that
are carried out during the course of patent prosecution.
D-1