U.S. Securities Laws (a) The Parties intend that the issuance of (i) the New Parent Shares under the Arrangement and (ii) Replacement Options (and corresponding tandem Replacement SARs) issued in exchange for the Agrium Voting Options shall be exempt from the registration requirements of the U.S. Securities Act pursuant to the exemption provided by Section 3(a)(10) thereof (the “Section 3(a)(10) Exemption”). Each Party shall act in good faith, consistent with the intent of the Parties and the intended treatment of the Arrangement set forth in this Section 2.15.
(b) In order to ensure the availability of the Section 3(a)(10) Exemption, the Parties agree that each of the Arrangement and the issuance of such Replacement Options (and corresponding tandem Replacement SARs) shall be carried out on the following basis:
(i) each of the Arrangement and the issuance of such Replacement Options (and corresponding tandem Replacement SARs) shall be subject to the approval of the Court;
(ii) the Court shall be advised as to the intention of New Parent and the Parties to rely on the Section 3(a)(10) Exemption prior to the hearing required to approve each of the Arrangement and the issuance of such Replacement Options (and corresponding tandem Replacement SARs);
(iii) the Court shall be required to satisfy itself as to the substantive and procedural fairness of each of the Arrangement and the issuance of such Replacement Options (and corresponding tandem Replacement SARs);
(iv) the Final Order shall expressly state that each of the Arrangement and the issuance of such Replacement Options (and corresponding tandem Replacement SARs) is approved by the Court as being substantively and procedurally fair to the Persons to whom the New Parent Shares and such Replacement Options (and corresponding tandem Replacement SARs) will be issued;
(v) the Parties shall ensure that each Person entitled to receive New Parent Shares on completion of the Arrangement and such Replacement Options (and corresponding tandem Replacement SARs), as applicable, shall be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right;
(vi) each Person to whom New Parent Shares shall be issued pursuant to the Arrangement and to whom such Replacement Options (and corresponding tandem Replacement SARs) shall be issued, as applicable, shall be advised that such New Parent Shares and such Replacement Options (and corresponding tandem Replacement SARs) have not been registered under the U.S. Securities Act and shall be issued by Agrium in reliance upon the exemption from the registration requirements of the U.S. Securities Act provided by Section 3(a)(10) of the U.S. Securities Act and, in the case of affiliates of PCS and of Agrium, shall be subject to certain restrictions on resale under the U.S. Securities Laws, including Rule 144 under the U.S. Securities Act;
(vii) the Interim Order shall specify that each Person to whom (i) New Parent Shares shall be issued pursuant to the Arrangement or (ii) such Replacement Options (and corresponding tandem Replacement SARs) shall be issued shall have the right to appear before the Court at the hearing of the Court to give approval of the Arrangement so long as such securityholder enters an appearance within a reasonable time; and
(viii) the Final Order shall include a statement to substantially the following effect: “This Order shall serve as the basis for reliance on the exemption provided by Section 3(a)(10) of the United States Securities Act of 1933, as amended, from the registration requirements otherwise imposed by that act, regarding the distribution of (i) common shares of New Parent pursuant to the Plan of Arrangement, and (ii) options to purchase common shares of New Parent in exchange for currently outstanding Agrium options, which Agrium options were granted under the Agrium Stock Option Plan on or before December 31, 2012, and corresponding tandem Replacement SARs as contemplated in the Plan of Arrangement.”
Securities Laws (a) LIFE COMPANY represents and warrants that (i) interests in each Account pursuant to the Contracts will be registered under the 1933 Act to the extent required by the 1933 Act, (ii) the Contracts will be duly authorized for issuance and sold in compliance with all applicable federal and state laws, including, without limitation, the 1933 Act, the 1934 Act, the 1940 Act and the law(s) of LIFE COMPANY’s state(s) of organization and domicile, (iii) each Account is and will remain registered under the 1940 Act, to the extent required by the 1940 Act, (iv) each Account does and will comply in all material respects with the requirements of the 1940 Act and the rules thereunder, to the extent required, (v) each Account’s 1933 Act registration statement relating to the Contracts, together with any amendments thereto, will at all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder, (vi) LIFE COMPANY will amend the registration statement for its Contracts under the 1933 Act and for its Accounts under the 1940 Act from time to time as required in order to effect the continuous offering of its Contracts or as may otherwise be required by applicable law, and (vii) each Account Prospectus, Statement of Additional Information, and then-current stickers (collectively referred to herein as “Account Prospectus”), will at all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder.
(b) AVIF represents and warrants that (i) Shares sold pursuant to this Agreement will be registered under the 1933 Act to the extent required by the 1933 Act and duly authorized for issuance and sold in compliance with Delaware law, (ii) AVIF is and will remain registered under the 1940 Act to the extent required by the 1940 Act, (iii) AVIF will amend the registration statement for its Shares under the 1933 Act and itself under the 1940 Act from time to time as required in order to effect the continuous offering of its Shares, (iv) AVIF does and will comply in all material respects with the requirements of the 1940 Act and the rules thereunder, (v) AVIF’s 1933 Act registration statement, together with any amendments thereto, will at all times comply in all material respects with the requirements of the 1933 Act and rules thereunder, and (vi) AVIF’s Prospectus, Statement of Additional Information, and then-current stickers (collectively referred to herein as “AVIF Prospectus”), will at all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder.
(c) AVIF will at its expense register and qualify its Shares for sale in accordance with the laws of any state or other jurisdiction if and to the extent reasonably deemed advisable by AVIF.
(d) AVIF represents and warrants that all of its trustees, officers, employees, investment advisers, and other individuals/entities having access to the funds and/or securities of the Fund are and continue to be at all times covered by a blanket fidelity bond or similar coverage for the benefit of the Fund in an amount not less than the minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or related provisions as may be promulgated from time to time. The aforesaid bond includes coverage for larceny and embezzlement and is issued by a reputable bonding company.
State Securities Laws The Company hereby agrees to use its best efforts to comply with all state securities or "blue sky" laws which might be applicable to the sale of the Stock and the issuance of the Options to the Purchaser.
U.S. Securities Law Matters The Parties agree that the Arrangement will be carried out with the intention that all Proportionate Voting Shares issued under the Arrangement to the JW Entities will be issued by the Company in reliance on the exemption from the registration requirements of the U.S. Securities Act provided by section 3(a)(10) thereof or another available exemption. In order to ensure the availability of the exemption under section 3(a)(10) of the U.S. Securities Act, the Parties agree that the Arrangement will be carried out on the following basis:
(a) the Arrangement will be subject to the approval of the Court;
(b) the Court will be advised as to the intention of the Parties to rely on the exemption from the registration requirements of the U.S. Securities Act under section 3(a)(10) thereof prior to the hearing required to approve the Arrangement;
(c) before approving the Arrangement, the Court will be required to satisfy itself as to the procedural and substantive fairness of the Arrangement to the Company Shareholders;
(d) the Company will ensure that the JW Entities will be given adequate notice advising them of their right to attend the Final Order hearing and will provide them with sufficient information for them to exercise that right;
(e) the JW Entities hereby acknowledge that they have been advised that the Proportionate Voting Shares issued pursuant to the Arrangement have not been registered under the U.S. Securities Act and will be issued by the Company in reliance on the exemption under section 3(a)(10) of the U.S. Securities Act;
(f) the Final Order approving the Arrangement that is obtained from the Court will expressly state that the Plan of Arrangement is fair and reasonable (as that term is understood for the purposes of section 182 of the OBCA) and is approved by the Court; and
(g) the Interim Order approving the Company Meeting will specify that each Company Shareholder will have the right to appear before the Court at the Final Order hearing so long as they deliver a Notice of Appearance within the time prescribed by the Interim Order.
Securities Lending The Separate Accounts may participate in a securities lending program consistent with the terms of the general account securities lending program in which collateral is received for loaned securities, provided investments made with such collateral are invested within the Separate Accounts in assets consistent with these Investment guidelines and that match securities lending program liabilities.
Qualification Under State Securities Laws All registrations, qualifications, permits and approvals, if any, required under applicable state securities laws shall have been obtained for the lawful execution, delivery and performance of this Agreement.
Securities Law Exemptions Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in Section 1(b) (including Annex C hereto) and their compliance with their agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery of the Securities by the Initial Purchasers in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act.
Compliance with Applicable Securities Laws To the extent applicable, the Company will comply, in all material respects, with all federal and state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in this Indenture; provided, however, that, to the extent that the Company’s obligations pursuant to this Section 4.02 conflict with any law or regulation that is applicable to the Company and enacted after the Issue Date, the Company’s compliance with such law or regulation will not be considered to be a Default of such obligations.
Blue Sky Limitation Notwithstanding anything in this Agreement to the contrary, in the event the Company makes any public offering of its securities and determines in its sole discretion that it is necessary to reduce the number of issued but unexercised stock purchase rights so as to comply with any state securities or Blue Sky law limitations with respect thereto, the Board of Directors of the Company shall have the right (i) to accelerate the exercisability of this Option and the date on which this Option must be exercised, provided that the Company gives Participant 15 days’ prior written notice of such acceleration, and (ii) to cancel any portion of this Option or any other option granted to Participant pursuant to the Plan which is not exercised prior to or contemporaneously with such public offering. Notice shall be deemed given when delivered personally or when deposited in the United States mail, first class postage prepaid and addressed to Participant at the address of Participant on file with the Company.
Form D; Blue Sky Laws The Company agrees to file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to the Buyer promptly after such filing. The Company shall, on or before the Closing Date, take such action as the Company shall reasonably determine is necessary to qualify the Securities for sale to the Buyer at the applicable closing pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyer on or prior to the Closing Date.
