Company’s Covenants. 7.1 The Company will cause the Prospectuses to be filed with the Regulatory Authorities, will deliver all necessary copies of the Prospectuses to the Regulatory Authorities and will use its best efforts to have the Prospectuses accepted by the Regulatory Authorities and have the Commissions issue receipts for the Preliminary Prospectus and the Final Prospectus. The Company shall fulfill all legal requirements required to be fulfilled by the Company in connection therewith, in each case in form and substance satisfactory to the Agent as evidenced by the Agent’s execution of the certificates attached thereto. 7.2 Prior to the completion of the Offering, the Company shall allow the Agent to review the Offering Documents and conduct all due diligence which the Agent may reasonably require in order to fulfill their statutory obligations as Agent and in order to enable them to execute, acting prudently and responsibly, the certificates required to be executed by the Agent in such documents, including, without limitation, all corporate and operating records, documentation with respect to financial information (including budgets), copies of the financial statements to be included in the Prospectuses and access to key officers of the Company. 7.3 The Company will provide the Agent with commercial copies of the Prospectuses and Supplementary Material, to be delivered to the Agent without charge, in such quantities as the Agent may reasonably request, as soon as possible after the filing of the Preliminary Prospectus, Final Prospectus or Supplementary Material, as the case may be, but in any event on or before noon (Vancouver time) on the second Business Day after obtaining the receipt therefor (provided the Agent have provided notice of the quantity and delivery instructions of the Preliminary Prospectus, Final Prospectus, or Supplementary Material to be printed prior to filing of such document), as applicable, and such delivery will constitute the Company’s consent to the Agent’s use of such documents in connection with the Offering. 7.4 The Company will file with the Exchange all required documents and pay all required filing fees, and do all things required by the rules and policies of the Exchange, in order to obtain prior to the Closing Date the requisite acceptance or approval of the Exchange for (i) the Offering; (ii) the conditional listing of the Shares on the Exchange, subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing; and (iii) the conditional listing of, upon their issuance in accordance with the terms of the Agent Warrant Certificates, the Agent Warrant Shares subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing. 7.5 On or before the Closing Date, the Company shall take or cause to be taken all reasonable steps and proceedings (including but not limited to the filing of the Prospectuses and the obtaining of a receipt for the Prospectuses from the Commissions under the Applicable Securities Laws), necessary in order to qualify for distribution the Offered Shares for sale to Purchasers resident in the Qualifying Jurisdictions through the Agent and its sub-agents, if any, retained pursuant to Section 3.3 hereof, and to qualify for distribution the Agent’s Warrants. 7.6 Following the Effective Date and after consulting with the Exchange, the Company and the Agent will set the Closing Date and the Closing Time. Unless an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for such amendment, the Closing Date will be on or before the day which is 90 days after the Effective Date. If an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for the amendment, the Closing Date will be on or before the day which is 90 days after the date of the receipt for such amendment, provided, however, that the Closing Date will not be more than 180 days from the date of the receipt for the initial Final Prospectus. 7.7 During the period prior to the completion of the Offering, the Company shall promptly notify the Agent in writing of: (a) any material change (actual, contemplated or threatened) in the business, affairs, operations, assets or liabilities (contingent or otherwise) prospects, financial position or capital or ownership of the Company or proposed ownership of the Company (other than a change disclosed in the Prospectuses); and (b) any change which is of such a nature as to result in a misrepresentation in either of the Prospectuses or any amendment thereto; and any material fact that has arisen or been discovered and that would be required to have been disclosed in the Prospectuses or in Supplementary Material had that fact arisen or been discovered on or prior to the date of the Prospectuses or any Supplementary Material, which change or fact is, or may be, of such a nature as to render the Prospectuses or any Supplementary Material misleading or untrue in any material respect or would result in any of such documents containing a misrepresentation, as defined under Applicable Securities Laws of the Qualifying Jurisdictions, or which would result in any of such documents not complying with any of the Applicable Securities Laws of the Qualifying Jurisdictions or which change would reasonably be expected to have a significant effect on the market price or value of the Offered Shares. The Company shall in good faith discuss with the Agent any change in circumstances (actual or proposed within the knowledge of the Company) which is of such a nature that there is reasonable doubt whether notice needs to be given to the Agent pursuant to this subsection and, in any event, prior to making any filing. 7.8 The Company shall deliver to the Agent duly executed copies of any Supplementary Material required to be filed by the Company in accordance with Section 7.7 above and, if any financial or accounting information is contained in any of the Supplementary Material, an additional comfort letter to that required below. 7.9 The Company shall immediately or in good faith discuss with the Agent any change in circumstances which is of a nature that there is reasonable doubt as to whether notice in writing need to be given to the Agent pursuant to Section 7.7 hereof. 7.10 Now and at all times subsequent hereto during the distribution of the Offered Shares to the public or such longer person of time, if any, while the Final Prospectus continues to be current, the Final Prospectus and any amendments thereto does and will fully comply with the requirements of the Applicable Securities Laws. The Final Prospectus, together with any amendments thereto does and will during such period provide full, true and plain disclosure of all material facts relating to the Company, the Offered Shares and the distribution of the Offered Shares to the public, and does not and will not during such period contain a Misrepresentation; provided that the foregoing covenants of the Company do not and shall not apply with respect to any information or statements contained in the Final Prospectus provided by and relating solely to the Agent. 7.11 During the period of distribution to the public of the Offered Shares, the Company will advise the Agent promptly of any request of the Commissions or the Exchange for an amendment to the Final Prospectus or for any additional information, of the issuance by the Commissions, Exchange or any other securities commission, stock exchange or similar regulatory authority, of any cease trade order or similar order relating to the Common Shares or Offered Shares or the use of the Final Prospectus, or of the institution or threat of an institution of any proceedings for that purpose or of the receipt by the Company of any communication from the Commissions, Exchange or any other securities commission stock exchange or similar regulatory authority relating to the Prospectuses or the offering of the Offered Shares. The Company will use its best efforts during the period of distribution to the public of the Offered Shares to prevent the issuance of any such cease trade order and, if issued during such period, to obtain the withdrawal thereof as soon as possible. 7.12 After the Offering is completed, the Company and the Agent will forthwith file any documents required by the Exchange necessary to permit the Common Shares to commence trading on the Exchange. 7.13 The Company will deliver to the Agent: (a) at the time of execution of the Final Prospectus by the Agent, a long form comfort letter (the “Comfort Letter”) from the Company’s auditors addressed to the Agent and dated as of the date of the Final Prospectus and based on procedures performed within two Business Days of the Final Prospectus, in form and content acceptable to the Agent, acting reasonably, relating to the verification of the financial information and accounting data contained in the Final Prospectus and to such other matters as the Agent may reasonably require; (b) at the Closing Time, such legal opinions of the Company’s legal counsel (including U.S. legal counsel), addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content to be agreed upon the Agent and the Company, acting reasonably, relating to matters as the Agent may reasonably require; (c) at the Closing Time, a certificate (the “Officers’ Certificate”) of the Company signed by its Chief Executive Officer and Chief Financial Officer, addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content acceptable to the Agent, acting reasonably, certifying for and on behalf of the Company and not in their personal capacities that, to the actual knowledge of the persons signing such certificate, after having made due and relevant inquiry: (i) the Company has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time; (ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the sale of the Offered Shares or any of the Company’s issued securities has been issued and no proceeding for such purpose is pending or, to the knowledge of such officers, threatened; (iii) the Company is a “reporting issuer” or its equivalent under the securities laws of British Columbia, Alberta, Saskatchewan, Manitoba and Ontario, and no material change relating to the Company has occurred since the date of this Agreement with respect to which the requisite material change report has not been filed and no such disclosure has been made on a confidential basis that remains subject to confidentiality; and (iv) all of the representations and warranties made by the Company in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby; (d) the Agent having received certificates dated the Closing Date signed by the Chief Executive Officer of the Company or another officer acceptable to the Agent, acting reasonably, in form and content satisfactory to the Agent, acting reasonably, with respect to the constating documents of the Company; the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Shares, the grant of the Over-Allotment Option, the issuance of the Agent’s Warrants, the authorization of this Agreement, the listing of the Shares and Agent Warrant Shares on the Exchange and transactions contemplated by this Agreement and the incumbency and signatures of signing officers of the Company; (e) at the Closing Time, a certificate of status (or equivalent) for the Company and the Subsidiary dated within one Business Day (or such earlier or later date as the Agent may accept) of the Closing Date; (f) at the Closing Time, a certificate of the registrar and transfer agent of the Common Shares, which certifies the number of Common Shares issued and outstanding on the date prior to the Closing Date; (g) at the Closing Time, a comfort letter, dated the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to the date which is two Business Days prior to the Closing Date, the information contained in the Comfort Letter; (h) at the Closing Time, such other materials (the “Closing Materials”) as the Agent may reasonably require and as are customary in a transaction of this nature, and the Closing Materials will be addressed to the Agent and to such parties as may be reasonably directed by the Agent and will be dated as of the Closing Date or such other date as the Agent may reasonably require; and (i) documents evidencing the necessary approval of the Regulatory Authorities for the Offering and the listing of the Common Shares on the Exchange. 7.14 The Company shall take all necessary steps to complete and file with the Exchange its application for listing with all other documentation required by the Exchange, to allow for the listing and halt of the Common Shares on the Exchange prior to the Closing. In the event that the Agent is required to provide or deliver any such documentation in connection with the application for listing or take such steps in connection therewith, the Company shall not be in breach of this Section 7.14 to the extent that the listing of the Common Shares on the Exchange concurrently with the Closing is delayed or is not completed due to the Agent’s failure to provide or deliver such documentation or take such steps. 7.15 The Proceeds received by the Company from the sale of the Offered Shares and any Common Shares sold prior to the date of the Prospectuses will be applied for the specific purposes more particularly set out under “Use of Proceeds” in the Prospectuses and in compliance with Exchange Policies. 7.16 At the Closing Date, the Offered Shares shall have been made “eligible” by CDS Clearing and Depository Services Inc. (“CDS”) and counsel to the Company shall have provided written confirmation from CDS of such eligibility to Agent’s counsel. 7.17 The Company will use its commercially reasonable best efforts to maintain its status as a reporting issuer not in default of any Applicable Securities Laws in the Offering Jurisdictions for a period of 36 months following the date that its Common Shares are listed and posted for trading on the Exchange and will use its commercially reasonable best efforts to maintain its listing on the Exchange (or such other exchange on which the Common Shares may be listed) during such 36 months. 7.18 During the period commencing on the date hereof and ending on the Closing Date (unless otherwise specified), the Company will promptly provide to the Agent and the Agent’s counsel, for review, prior to filing or issuance of the same, any proposed public disclosure document, including without limitation, any press release (including any press release issued after the Closing Date related to this Agreement and the Offering) or material change report and the Company will use its commercially reasonable efforts to agree with the Agent, acting reasonably, as to the form and substance of such document. 7.19 The Company shall forthwith notify the Agent upon becoming aware of any breach of any covenant of this Agreement by any party thereto, or upon it becoming aware that any representation or warranty of the Company contained in this Agreement is or has become untrue or inaccurate in any material respect. 7.20 The Company shall ensure that any news release relating to the Offering and naming the Agent will include substantially the following legend: “NOT FOR DISTRIBUTION TO THE UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” All news releases relating to the Offering will include the following statement: This news release does not constitute an offer to sell or a solicitation of an offer to buy any of the securities. ”. 7.21 The Company shall not reproduce, disseminate, quote from or refer to the Offering or any written or oral opinions, advice, analysis and materials provided by the
Appears in 1 contract
Sources: Agency Agreement (Direct Communication Solutions, Inc.)
Company’s Covenants. 7.1 The Company will cause the Prospectuses to be filed with the Regulatory Authorities, will deliver all necessary copies of the Prospectuses to the Regulatory Authorities and will use its best efforts to have the Prospectuses accepted by the Regulatory Authorities and have the Commissions issue receipts for the Preliminary Prospectus and the Final Prospectus. The Company shall fulfill all legal requirements required to be fulfilled by the Company in connection therewith, in each case in form and substance satisfactory to the Agent as evidenced by the Agent’s execution of the certificates attached thereto.
7.2 Prior to the completion of the Offering, the Company shall allow the Agent to review the Offering Documents and conduct all due diligence which the Agent may reasonably require in order to fulfill their statutory obligations as Agent and in order to enable them to execute, acting prudently and responsibly, the certificates required to be executed by the Agent in such documents, including, without limitation, all corporate and operating records, documentation with respect to financial information (including budgets), copies of the financial statements to be included in the Prospectuses and access to key officers of the Company.
7.3 The Company will provide the Agent with commercial copies of the Prospectuses and Supplementary Material, to be delivered to the Agent without charge, in such quantities as the Agent may reasonably request, as soon as possible after the filing of the Preliminary Prospectus, Final Prospectus or Supplementary Material, as the case may be, but in any event on or before noon (Vancouver time) on the second Business Day after obtaining the receipt therefor (provided the Agent have provided notice of the quantity and delivery instructions of the Preliminary Prospectus, Final Prospectus, or Supplementary Material to be printed prior to filing of such document), as applicable, and such delivery will constitute the Company’s consent to the Agent’s use of such documents in connection with the Offering.
7.4 The Company will file with the Exchange all required documents and pay all required filing fees, and do all things required by the rules and policies of the Exchange, in order to obtain prior to the Closing Date the requisite acceptance or approval of the Exchange for (i) the Offering; (ii) the conditional listing of the Shares on the Exchange, subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing; and (iii) the conditional listing of, upon their issuance in accordance with the terms of the Agent Warrant Certificates, the Agent Warrant Shares subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing.
7.5 On or before the Closing Date, the Company shall take or cause to be taken all reasonable steps and proceedings (including but not limited to the filing of the Prospectuses and the obtaining of a receipt for the Prospectuses from the Commissions under the Applicable Securities Laws), necessary in order to qualify for distribution the Offered Shares for sale to Purchasers resident in the Qualifying Jurisdictions through the Agent and its sub-agents, if any, retained pursuant to Section 3.3 hereof, and to qualify for distribution the Agent’s Warrants.
7.6 Following the Effective Date and after consulting with the Exchange, the Company and the Agent will set the Closing Date and the Closing Time. Unless an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for such amendment, the Closing Date will be on or before the day which is 90 days after the Effective Date. If an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for the amendment, the Closing Date will be on or before the day which is 90 days after the date of the receipt for such amendment, provided, however, that the Closing Date will not be more than 180 days from the date of the receipt for the initial Final Prospectus.
7.7 During the period prior to the completion of the Offering, the Company shall promptly notify the Agent in writing of:of:
(a) any material change (actual, contemplated or threatened) in the business, affairs, operations, assets or liabilities (contingent or otherwise) prospects, financial position or capital or ownership of the Company or proposed ownership of the Company (other than a change disclosed in the Prospectuses); and
(b) any change which is of such a nature as to result in a misrepresentation in either of the Prospectuses or any amendment thereto; and any material fact that has arisen or been discovered and that would be required to have been disclosed in the Prospectuses or in Supplementary Material had that fact arisen or been discovered on or prior to the date of the Prospectuses or any Supplementary Material, which change or fact is, or may be, of such a nature as to render the Prospectuses or any Supplementary Material misleading or untrue in any material respect or would result in any of such documents containing a misrepresentation, as defined under Applicable Securities Laws of the Qualifying Jurisdictions, or which would result in any of such documents not complying with any of the Applicable Securities Laws of the Qualifying Jurisdictions or which change would reasonably be expected to have a significant effect on the market price or value of the Offered Shares. The Company shall in good faith discuss with the Agent any change in circumstances (actual or proposed within the knowledge of the Company) which is of such a nature that there is reasonable doubt whether notice needs to be given to the Agent pursuant to this subsection and, in any event, prior to making any filing.
7.8 The Company shall deliver to the Agent duly executed copies of any Supplementary Material required to be filed by the Company in accordance with Section 7.7 above and, if any financial or accounting information is contained in any of the Supplementary Material, an additional comfort letter to that required below.below.
7.9 The Company shall immediately or in good faith discuss with the Agent any change in circumstances which is of a nature that there is reasonable doubt as to whether notice in writing need to be given to the Agent pursuant to Section 7.7 hereof.
7.10 Now and at all times subsequent hereto during the distribution of the Offered Shares to the public or such longer person of time, if any, while the Final Prospectus continues to be current, the Final Prospectus and any amendments thereto does and will fully comply with the requirements of the Applicable Securities Laws. The Final Prospectus, together with any amendments thereto does and will during such period provide full, true and plain disclosure of all material facts relating to the Company, the Offered Shares and the distribution of the Offered Shares to the public, and does not and will not during such period contain a Misrepresentation; provided that the foregoing covenants of the Company do not and shall not apply with respect to any information or statements contained in the Final Prospectus provided by and relating solely to the Agent.
7.11 During the period of distribution to the public of the Offered Shares, the Company will advise the Agent promptly of any request of the Commissions or the Exchange for an amendment to the Final Prospectus or for any additional information, of the issuance by the Commissions, Exchange or any other securities commission, stock exchange or similar regulatory authority, of any cease trade order or similar order relating to the Common Shares or Offered Shares or the use of the Final Prospectus, or of the institution or threat of an institution of any proceedings for that purpose or of the receipt by the Company of any communication from the Commissions, Exchange or any other securities commission stock exchange or similar regulatory authority relating to the Prospectuses or the offering of the Offered Shares. The Company will use its best efforts during the period of distribution to the public of the Offered Shares to prevent the issuance of any such cease trade order and, if issued during such period, to obtain the withdrawal thereof as soon as possible.
7.12 After the Offering is completed, the Company and the Agent will forthwith file any documents required by the Exchange necessary to permit the Common Shares to commence trading on the Exchange.
7.13 The Company will deliver to the Agent:Agent:
(a) at the time of execution of the Final Prospectus by the Agent, a long form comfort letter (the “Comfort Letter”) from the Company’s auditors addressed to the Agent and dated as of the date of the Final Prospectus and based on procedures performed within two Business Days of the Final Prospectus, in form and content acceptable to the Agent, acting reasonably, relating to the verification of the financial information and accounting data contained in the Final Prospectus and to such other matters as the Agent may reasonably require;
(b) at the Closing Time, such legal opinions of the Company’s legal counsel (including U.S. legal counsel), addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content to be agreed upon the Agent and the Company, acting reasonably, relating to matters as the Agent may reasonably require;
(c) at the Closing Time, a certificate (the “Officers’ Certificate”) of the Company signed by its Chief Executive Officer and Chief Financial Officer, addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content acceptable to the Agent, acting reasonably, certifying for and on behalf of the Company and not in their personal capacities that, to the actual knowledge of the persons signing such certificate, after having made due and relevant inquiry:
(i) the Company has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the sale of the Offered Shares or any of the Company’s issued securities has been issued and no proceeding for such purpose is pending or, to the knowledge of such officers, threatened;
(iii) the Company is a “reporting issuer” or its equivalent under the securities laws of British Columbia, Alberta, Saskatchewan, Manitoba and Ontario, and no material change relating to the Company has occurred since the date of this Agreement with respect to which the requisite material change report has not been filed and no such disclosure has been made on a confidential basis that remains subject to confidentiality; and
(iv) all of the representations and warranties made by the Company in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(d) the Agent having received certificates dated the Closing Date signed by the Chief Executive Officer of the Company or another officer acceptable to the Agent, acting reasonably, in form and content satisfactory to the Agent, acting reasonably, with respect to the constating documents of the Company; the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Shares, the grant of the Over-Allotment Option, the issuance of the Agent’s Warrants, the authorization of this Agreement, the listing of the Shares and Agent Warrant Shares on the Exchange and transactions contemplated by this Agreement and the incumbency and signatures of signing officers of the Company;
(e) at the Closing Time, a certificate of status (or equivalent) for the Company and the Subsidiary dated within one Business Day (or such earlier or later date as the Agent may accept) of the Closing Date;
(f) at the Closing Time, a certificate of the registrar and transfer agent of the Common Shares, which certifies the number of Common Shares issued and outstanding on the date prior to the Closing Date;
(g) at the Closing Time, a comfort letter, dated the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to the date which is two Business Days prior to the Closing Date, the information contained in the Comfort Letter;
(h) at the Closing Time, such other materials (the “Closing Materials”) as the Agent may reasonably require and as are customary in a transaction of this nature, and the Closing Materials will be addressed to the Agent and to such parties as may be reasonably directed by the Agent and will be dated as of the Closing Date or such other date as the Agent may reasonably require; and
(i) documents evidencing the necessary approval of the Regulatory Authorities for the Offering and the listing of the Common Shares on the Exchange.
7.14 The Company shall take all necessary steps to complete and file with the Exchange its application for listing with all other documentation required by the Exchange, to allow for the listing and halt of the Common Shares on the Exchange prior to the Closing. In the event that the Agent is required to provide or deliver any such documentation in connection with the application for listing or take such steps in connection therewith, the Company shall not be in breach of this Section 7.14 to the extent that the listing of the Common Shares on the Exchange concurrently with the Closing is delayed or is not completed due to the Agent’s failure to provide or deliver such documentation or take such steps.steps.
7.15 The Proceeds received by the Company from the sale of the Offered Shares and any Common Shares sold prior to the date of the Prospectuses will be applied for the specific purposes more particularly set out under “Use of Proceeds” in the Prospectuses and in compliance with Exchange Policies.
7.16 At the Closing Date, the Offered Shares shall have been made “eligible” by CDS Clearing and Depository Services Inc. (“CDS”) and counsel to the Company shall have provided written confirmation from CDS of such eligibility to Agent’s counsel.
7.17 The Company will use its commercially reasonable best efforts to maintain its status as a reporting issuer not in default of any Applicable Securities Laws in the Offering Jurisdictions for a period of 36 months following the date that its Common Shares are listed and posted for trading on the Exchange and will use its commercially reasonable best efforts to maintain its listing on the Exchange (or such other exchange on which the Common Shares may be listed) during such 36 months.
7.18 During the period commencing on the date hereof and ending on the Closing Date (unless otherwise specified), the Company will promptly provide to the Agent and the Agent’s counsel, for review, prior to filing or issuance of the same, any proposed public disclosure document, including without limitation, any press release (including any press release issued after the Closing Date related to this Agreement and the Offering) or material change report and the Company will use its commercially reasonable efforts to agree with the Agent, acting reasonably, as to the form and substance of such document.document.
7.19 The Company shall forthwith notify the Agent upon becoming aware of any breach of any covenant of this Agreement by any party thereto, or upon it becoming aware that any representation or warranty of the Company contained in this Agreement is or has become untrue or inaccurate in any material respect.
7.20 The Company shall ensure that any news release relating to the Offering and naming the Agent will include substantially the following legend: “NOT FOR DISTRIBUTION TO THE UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” All news releases relating to the Offering will include the following statement: This news release does not constitute an offer to sell or a solicitation of an offer to buy any of the securities. ”.
7.21 The Company shall not reproduce, disseminate, quote from or refer to the Offering or any written or oral opinions, advice, analysis and materials provided by the b
Appears in 1 contract
Sources: Agency Agreement
Company’s Covenants. 7.1 The Company hereby covenants and agrees and, in the Agency Agreement and/or the Special Warrant Indenture, the Company will covenant and agree as follows:
(a) to use its commercially reasonable best efforts (i) to cause the Prospectuses a Registration Statement to be filed with and prosecuted to effectiveness, (ii) to cause the Regulatory Authorities, will deliver all necessary copies preliminary prospectus of the Prospectuses Company relating to the Regulatory Authorities distribution of the Unit Shares and will use its best efforts Warrants (the "PRELIMINARY PROSPECTUS") to have the Prospectuses accepted by the Regulatory Authorities be filed and have the Commissions issue (iii) to obtain receipts for the Preliminary Prospectus and final Prospectus, as expeditiously as reasonably practicable after the Final Prospectus. The Company shall fulfill all legal requirements required to be fulfilled by the Company in connection therewithClosing Date, in each case in form and substance satisfactory to the Agent as evidenced by the Agent’s execution of the certificates attached thereto.
7.2 Prior to the completion of the Offering, the Company shall allow the Agent to review the Offering Documents and conduct all due diligence which the Agent may reasonably require in order to fulfill their statutory obligations as Agent and in order to enable them to execute, acting prudently and responsibly, the certificates required to be executed by the Agent in such documents, including, without limitation, all corporate and operating records, documentation with respect to financial information (including budgets), copies of the financial statements to be included in the Prospectuses and access to key officers of the Company.
7.3 The Company will provide the Agent with commercial copies of the Prospectuses and Supplementary Material, to be delivered to the Agent without charge, in such quantities as the Agent may reasonably request, as soon as possible after the filing of the Preliminary Prospectus, Final Prospectus or Supplementary Material, as the case may be, but in any event on or before noon (Vancouver time) on the second Business Day after obtaining the receipt therefor (provided the Agent have provided notice of the quantity and delivery instructions of the Preliminary Prospectus, Final Prospectus, or Supplementary Material to be printed prior to filing of such document), as applicable, and such delivery will constitute the Company’s consent to the Agent’s use of such documents in connection with the Offering.
7.4 The Company will file with the Exchange all required documents and pay all required filing fees, and do all things required by the rules and policies of the Exchange, in order to obtain prior to the Closing Date the requisite acceptance or approval of the Exchange for (i) the Offering; (ii) the conditional listing of the Shares on the Exchange, subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing; and (iii) the conditional listing of, upon their issuance in accordance with the terms of the Agent Warrant Certificates, the Agent Warrant Shares subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing.
7.5 On or before the Closing Date, the Company shall take or cause to be taken all reasonable steps and proceedings (including but not limited to the filing of the Prospectuses and the obtaining of a receipt for the Prospectuses from the Commissions under the Applicable Securities Laws), necessary in order to qualify for distribution the Offered Shares for sale to Purchasers resident in the Qualifying Jurisdictions through the Agent and its sub-agents, if any, retained pursuant to Section 3.3 hereof, and to qualify for distribution the Agent’s Warrants.
7.6 Following the Effective Date and after consulting with the Exchange, the Company and the Agent will set the Closing Date and the Closing Time. Unless an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for such amendment, the Closing Date will be on or before the day which is 90 days after the Effective Date. If an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for the amendment, the Closing Date will be on or before the day which is 90 days after the date of the receipt for such amendment, provided, however, that the Closing Date will not be more than 180 days from the date of the receipt for the initial Final Prospectus.
7.7 During the period prior to the completion of the Offering, the Company shall promptly notify the Agent in writing of:
(a) any material change (actual, contemplated or threatened) in the business, affairs, operations, assets or liabilities (contingent or otherwise) prospects, financial position or capital or ownership of the Company or proposed ownership of the Company (other than a change disclosed in the Prospectuses); and
(b) any change which is of such a nature as to result in a misrepresentation in either of the Prospectuses or any amendment thereto; and any material fact that has arisen or been discovered and that would be required to have been disclosed in the Prospectuses or in Supplementary Material had that fact arisen or been discovered on or prior to the date of the Prospectuses or any Supplementary Material, which change or fact is, or may be, of such a nature as to render the Prospectuses or any Supplementary Material misleading or untrue in any material respect or would result in any of such documents containing a misrepresentation, as defined under Applicable Securities Laws of the Qualifying Jurisdictions, or which would result in any of such documents not complying with any of the Applicable Securities Laws of the Qualifying Jurisdictions or which change would reasonably be expected to have a significant effect on the market price or value of the Offered Shares. The Company shall in good faith discuss with the Agent any change in circumstances (actual or proposed within the knowledge of the Company) which is of such a nature that there is reasonable doubt whether notice needs to be given to the Agent pursuant to this subsection and, in any event, prior to making any filing.
7.8 The Company shall deliver to the Agent duly executed copies of any Supplementary Material required to be filed by the Company in accordance with Section 7.7 above and, if any financial or accounting information is contained in any of the Supplementary Material, an additional comfort letter to that required below.
7.9 The Company shall immediately or in good faith discuss with the Agent any change in circumstances which is of a nature that there is reasonable doubt as to whether notice in writing need to be given to the Agent pursuant to Section 7.7 hereof.
7.10 Now and at all times subsequent hereto during the distribution of the Offered Shares to the public or such longer person of time, if any, while the Final Prospectus continues to be current, the Final Prospectus and any amendments thereto does and will fully comply with the requirements of the Applicable Securities Laws. The Final Prospectus, together with any amendments thereto does and will during such period provide full, true and plain disclosure of all material facts relating to the Company, the Offered Shares and the distribution of the Offered Shares to the public, and does not and will not during such period contain a Misrepresentation; provided that the foregoing covenants of the Company do not and shall not apply with respect to any information or statements contained in the Final Prospectus provided by and relating solely to the Agent.
7.11 During the period of distribution to the public of the Offered Shares, the Company will advise the Agent promptly of any request of the Commissions or the Exchange for an amendment to the Final Prospectus or for any additional information, of the issuance by the Commissions, Exchange or any other securities commission, stock exchange or similar regulatory authority, of any cease trade order or similar order relating to the Common Shares or Offered Shares or the use of the Final Prospectus, or of the institution or threat of an institution of any proceedings for that purpose or of the receipt by the Company of any communication from the Commissions, Exchange or any other securities commission stock exchange or similar regulatory authority relating to the Prospectuses or the offering of the Offered Shares. The Company will use its best efforts during the period of distribution to the public of the Offered Shares to prevent the issuance of any such cease trade order and, if issued during such period, to obtain the withdrawal thereof as soon as possible.
7.12 After the Offering is completed, the Company and the Agent will forthwith file any documents required by the Exchange necessary to permit the Common Shares to commence trading on the Exchange.
7.13 The Company will deliver to the Agent:
(a) at the time of execution of the Final Prospectus by the Agent, a long form comfort letter (the “Comfort Letter”) from the Company’s auditors addressed to the Agent and dated as of the date of the Final Prospectus and based on procedures performed within two Business Days of the Final Prospectus, in form and content acceptable to the AgentAgents, acting reasonably, relating to the verification of the financial information and accounting data contained in the Final Prospectus and to such other matters as the Agent may reasonably require;
(b) at to use its reasonable best efforts to promptly comply with all filing and other requirements under all Applicable Securities Laws, including, where required by the Closing TimeAgency Agreement or any Applicable Securities Laws, such legal opinions the filing of amendments to the Preliminary Prospectus and Prospectus in each of the Company’s legal counsel (including U.S. legal counsel), addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content to be agreed upon the Agent and the Company, acting reasonably, relating to matters as the Agent may reasonably require;Canadian Jurisdictions; and
(c) at the Closing Time, a certificate (the “Officers’ Certificate”) of the Company signed by its Chief Executive Officer and Chief Financial Officer, addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content acceptable to the Agent, acting reasonably, certifying for and on behalf of the Company and not in their personal capacities that, to the actual knowledge of the persons signing such certificate, after having made due and relevant inquiry:
(i) the Company has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the sale of the Offered Shares or any of the Company’s issued securities has been issued and no proceeding for such purpose is pending or, to the knowledge of such officers, threatened;
(iii) the Company is a “reporting issuer” or its equivalent under the securities laws of British Columbia, Alberta, Saskatchewan, Manitoba and Ontario, and no material change relating to the Company has occurred since the date of this Agreement with respect to which the requisite material change report has not been filed and no such disclosure has been made on a confidential basis that remains subject to confidentiality; and
(iv) all of the representations and warranties made by the Company in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(d) the Agent having received certificates dated the Closing Date signed by the Chief Executive Officer of the Company or another officer acceptable to the Agent, acting reasonably, in form and content satisfactory to the Agent, acting reasonably, with respect to the constating documents of the Company; the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Shares, the grant of the Over-Allotment Option, the issuance of the Agent’s Warrants, the authorization of this Agreement, the listing of the Shares and Agent Warrant Shares on the Exchange and transactions contemplated by this Agreement and the incumbency and signatures of signing officers of the Company;
(e) at the Closing Time, a certificate of status (or equivalent) for the Company and the Subsidiary dated within one Business Day (or such earlier or later date as the Agent may accept) of the Closing Date;
(f) at the Closing Time, a certificate of the registrar and transfer agent of the Common Shares, which certifies the number of Common Shares issued and outstanding on the date prior to the Closing Date;
(g) at the Closing Time, a comfort letter, dated the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to the date which is two Business Days prior to the Closing Date, the information contained in the Comfort Letter;
(h) at the Closing Time, such other materials (the “Closing Materials”) as the Agent may reasonably require and as are customary in a transaction of this nature, and the Closing Materials will be addressed to the Agent and to such parties as may be reasonably directed by the Agent and will be dated as of the Closing Date or such other date as the Agent may reasonably require; and
(i) documents evidencing the necessary approval of the Regulatory Authorities for the Offering and the listing of the Common Shares on the Exchange.
7.14 The Company shall take all necessary steps to complete and file with the Exchange its application for listing with all other documentation required by the Exchange, to allow for the listing and halt of the Common Shares on the Exchange prior to the Closing. In the event that the Agent is required to provide or deliver any such documentation in connection with the application for listing or take such steps in connection therewith, the Company shall not be in breach of this Section 7.14 to the extent that the listing of the Common Shares on the Exchange concurrently with the Closing is delayed or is not completed due to the Agent’s failure to provide or deliver such documentation or take such steps.
7.15 The Proceeds received by the Company from the sale of the Offered Shares and any Common Shares sold prior to the date of the Prospectuses will be applied for the specific purposes more particularly set out under “Use of Proceeds” in the Prospectuses and in compliance with Exchange Policies.
7.16 At the Closing Date, the Offered Shares shall have been made “eligible” by CDS Clearing and Depository Services Inc. (“CDS”) and counsel to the Company shall have provided written confirmation from CDS of such eligibility to Agent’s counsel.
7.17 The Company will use its commercially reasonable best efforts to maintain its status as a reporting issuer not in default of any (or analogous entity) under the Applicable Securities Laws of such provinces in which it becomes a reporting issuer (or analogous entity) as a result of filing the Offering Jurisdictions Prospectus as required under the Agency Agreement and to continue to be in compliance with its obligations thereunder, without default, for a period of 36 months following at least one year from the date that its Common Shares are listed and posted for trading on of the Exchange and will use its commercially reasonable best efforts to maintain its listing on filing of the Exchange (or such other exchange on which the Common Shares may be listed) during such 36 months.
7.18 During the period commencing on the date hereof and ending on the Closing Date (unless otherwise specified)Prospectus in each Canadian Jurisdiction. In addition, the Company will promptly provide covenants of and terms applicable to the Agent and Company set out in the Agent’s counsel, for review, prior to filing or issuance Agency Agreement are hereby incorporated into this section as additional covenants of the same, any proposed public disclosure document, including without limitation, any press release (including any press release issued after the Closing Date related to this Agreement and the Offering) or material change report and the Company will use its commercially reasonable efforts to agree with the Agent, acting reasonably, as to the form and substance of such documentCompany.
7.19 The Company shall forthwith notify the Agent upon becoming aware of any breach of any covenant of this Agreement by any party thereto, or upon it becoming aware that any representation or warranty of the Company contained in this Agreement is or has become untrue or inaccurate in any material respect.
7.20 The Company shall ensure that any news release relating to the Offering and naming the Agent will include substantially the following legend: “NOT FOR DISTRIBUTION TO THE UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” All news releases relating to the Offering will include the following statement: This news release does not constitute an offer to sell or a solicitation of an offer to buy any of the securities. ”.
7.21 The Company shall not reproduce, disseminate, quote from or refer to the Offering or any written or oral opinions, advice, analysis and materials provided by the
Appears in 1 contract
Sources: Subscription Agreement (Voice Mobility International Inc)
Company’s Covenants. 7.1 The Company makes the following covenants to the Agent and acknowledges that the Agent is relying upon such covenants in entering into this Agreement:
(a) The Company will cause prepare and file the Prospectuses Final Prospectus pursuant to, and in compliance with, NP 11-202 and NI 44-101, and will take all other steps and proceedings that may be necessary to do so, before 5:00 p.m. (Toronto time) on July 15, 2022, and obtain a receipt therefor before 5:00 p.m. (Toronto time) on July 15, 2022 (or such other times or dates as may be agreed to in writing by the Agent).
(b) The Company hereby agrees, provided the Agent has taken all action required by it hereunder to permit the Company to do so, to use its commercially reasonable efforts to comply with all Applicable Securities Laws on a timely basis in connection with the Offering, including the payment of all filing fees required to be paid in connection therewith. Subject to being notified by the Agent of placements made to purchasers in jurisdictions other than Canada, the Company also agrees to file within the periods stipulated under Applicable Securities Laws and at the Company's expense, all private placement forms required to be filed by it in such jurisdictions in connection with the Regulatory Authorities, will deliver Offering and agrees to pay all necessary copies of the Prospectuses to the Regulatory Authorities and will use its best efforts to have the Prospectuses accepted by the Regulatory Authorities and have the Commissions issue receipts for the Preliminary Prospectus and the Final Prospectus. The Company shall fulfill all legal requirements filing fees required to be fulfilled by paid in connection therewith so that the distribution of the Units outside of the Qualifying Provinces may lawfully occur without the necessity of filing a prospectus or any similar disclosure document under Applicable Securities Laws outside of the Qualifying Provinces. The Agent agrees to comply, and agree to assist the Company in complying, with all Applicable Securities Laws in connection therewith, in each case in form and substance satisfactory with the Offering.
(c) The Company covenants that prior to the Agent as evidenced by Closing Time, and at all times until the Agent’s execution of the certificates attached thereto.
7.2 Prior to the completion of the OfferingClosing Time, the Company shall it will allow the Agent (and its counsel) to review the Offering Documents and conduct all due diligence which the Agent may reasonably require in order to fulfill their statutory obligations as Agent and in order to enable them to execute, acting prudently and responsibly, the certificates required to or which may be executed considered necessary or appropriate by the Agent in such documents, including, without limitation, all corporate and operating records, documentation with respect to financial information (including budgets), copies of the financial statements to be included in the Prospectuses and access to key officers of the Company.
7.3 Agent. The Company will provide the Agent (and its counsel) with commercial copies reasonable access to the Company's senior management and corporate, financial and other records for the purposes of conducting such due diligence. Without limiting the scope of the Prospectuses and Supplementary Material, to be delivered to due diligence inquiry the Agent without charge(or its counsel) may conduct, in such quantities as the Company shall also make available its directors, senior management, auditors and legal counsel to answer any questions which the Agent may reasonably requesthave and to participate in one or more due diligence sessions (collectively, as soon as possible after the "Due Diligence Sessions") to be held prior to Closing and prior to filing each of the Preliminary Prospectus, Final Prospectus or Supplementary Material, as and the case may be, but in any event on or before noon (Vancouver time) on the second Business Day after obtaining the receipt therefor (provided the Agent have provided notice of the quantity and delivery instructions of the Preliminary Prospectus, Final Prospectus, or Supplementary Material . The Agent will distribute a list of written questions to be printed prior answered in advance of each Due Diligence Session and the Company will provide written or oral responses (the "Responses") to filing of such document), as applicable, questions and will use its commercially reasonable efforts to have its auditors provide responses to such delivery will constitute the Company’s consent to the Agent’s use of such documents in connection with the Offering.questions;
7.4 (d) The Company will file with the Exchange all required documents and pay all required filing feescovenants to use its commercially reasonable efforts to fulfil or cause to be fulfilled, and do all things required by the rules and policies of the Exchange, in order to obtain at or prior to the Closing Date Time, each of the requisite acceptance or conditions required to be fulfilled by it set out in Section 8 hereof.
(e) The Company covenants to use its commercially reasonable efforts to obtain the necessary approval of the Exchange CSE for (i) the Offering; (ii) the conditional listing of the Warrants on such conditions as are acceptable to the Agent DQG WKH &RPSDQ\ DSFtanWdLarQd JLis tinUg HDVRQD Conditions´ 7KH &RPSDQ\ FRYHQDQWV WR IXOILOO connection with the Financing.
(f) The Company covenants to fulfill all legal requirements to permit the creation, issuance, offering and sale of the Unit Shares on and the ExchangeWarrants comprising the Units, subject only the issuance of the Warrant Shares upon the exercise of the Warrants, the granting of the Agent's Warrants and the issuance of the Agent's Warrant Shares upon the exercise thereof, and the issuance of the Corporate Finance Fee Shares all as contemplated in this Agreement and file or cause to standard listing conditionsbe filed all documents, which applications, forms or undertakings required to be filed by the Company agrees to fully satisfy in a timely manner forthwith after the Closing; and (iii) the conditional listing of, upon their issuance in accordance with the terms of the Agent Warrant Certificates, the Agent Warrant Shares subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing.
7.5 On or before the Closing Date, the Company shall take or cause to be taken all reasonable steps action required to be taken by the Company in connection with the issuance and proceedings (including but not limited to the filing sale of the Prospectuses Unit Shares and Warrants comprising the Units, the issuance of the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon the exercise of the Warrants, and the obtaining granting of a receipt for the Prospectuses from the Commissions under the Applicable Securities Laws), necessary in order to qualify for distribution the Offered Shares for sale to Purchasers resident in the Qualifying Jurisdictions through the Agent and its sub-agents, if any, retained pursuant to Section 3.3 hereof, and to qualify for distribution the Agent’s Warrants's Warrants and the issuance of the Agent's Warrant Shares upon the exercise thereof.
7.6 Following the Effective Date and after consulting with the Exchange, the Company and the Agent will set the Closing Date and the Closing Time. Unless an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for such amendment, the Closing Date will be on or before the day which is 90 days after the Effective Date. If an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for the amendment, the Closing Date will be on or before the day which is 90 days after (g) Until the date of the receipt for such amendmentcompletion of the Distribution of the Units, provided, however, that the Closing Date will not be more than 180 days Company covenants to use its commercially reasonable efforts to ensure the Offering Documents comply at all times with Applicable Securities Laws.
(h) During the period from the date of the receipt for the initial Final Prospectus.
7.7 During the period prior to hereof until the completion of the OfferingDistribution of the Units, the Company shall covenants to promptly notify inform the Agent in writing of:
(a) any material change (actual, contemplated or threatened) in the business, affairs, operations, assets or liabilities (contingent or otherwise) prospects, financial position or capital or ownership of the Company or proposed ownership of the Company (other than a change disclosed in the Prospectuses); and
(b) any change which is of such a nature as to result in a misrepresentation in either of the Prospectuses or any amendment thereto; and any material fact that has arisen or been discovered and that would be required to have been disclosed in the Prospectuses or in Supplementary Material had that fact arisen or been discovered on or prior to the date of the Prospectuses or any Supplementary Material, which change or fact is, or may be, of such a nature as to render the Prospectuses or any Supplementary Material misleading or untrue in any material respect or would result in any of such documents containing a misrepresentation, as defined under Applicable Securities Laws of the Qualifying Jurisdictions, or which would result in any of such documents not complying with any of the Applicable Securities Laws of the Qualifying Jurisdictions or which change would reasonably be expected to have a significant effect on the market price or value of the Offered Shares. The Company shall in good faith discuss with the Agent any change in circumstances (actual or proposed within the knowledge of the Company) which is of such a nature that there is reasonable doubt whether notice needs to be given to the Agent pursuant to this subsection and, in any event, prior to making any filing.
7.8 The Company shall deliver to the Agent duly executed copies of any Supplementary Material required to be filed by the Company in accordance with Section 7.7 above and, if any financial or accounting information is contained in any of the Supplementary Material, an additional comfort letter to that required below.
7.9 The Company shall immediately or in good faith discuss with the Agent any change in circumstances which is of a nature that there is reasonable doubt as to whether notice in writing need to be given to the Agent pursuant to Section 7.7 hereof.
7.10 Now and at all times subsequent hereto during the distribution of the Offered Shares to the public or such longer person of time, if any, while the Final Prospectus continues to be current, the Final Prospectus and any amendments thereto does and will fully comply with the requirements of the Applicable Securities Laws. The Final Prospectus, together with any amendments thereto does and will during such period provide full, true and plain disclosure of all material facts relating to the Company, the Offered Shares and the distribution of the Offered Shares to the public, and does not and will not during such period contain a Misrepresentation; provided that the foregoing covenants of the Company do not and shall not apply with respect to any information or statements contained in the Final Prospectus provided by and relating solely to the Agent.
7.11 During the period of distribution to the public of the Offered Shares, the Company will advise the Agent promptly full particulars of any request of the Commissions or the Exchange for an amendment to the Final Prospectus or any Securities Commission for any additional information, of the issuance by the Commissions, Exchange or any other securities commission, stock exchange or similar regulatory authority, of any cease trade order or similar order relating to the Common Shares or Offered Shares or the use of the Final Prospectus, or of the institution or threat of an institution of any proceedings for that purpose or of the receipt by the Company of any communication from the Commissions, Exchange any Securities Commission or any other securities commission stock exchange or similar regulatory competent authority relating to the Prospectuses Company or which may be relevant to the offering Distribution of the Offered Shares. Units.
(i) The Company will use its best efforts during covenants to apply the period of distribution to net proceeds from the public of Offering as set forth in the Offered Shares to prevent the issuance of any such cease trade order and, if issued during such period, to obtain the withdrawal thereof as soon as possibleFinal Prospectus.
7.12 After the Offering is completed, the Company and the Agent will forthwith file any documents required by the Exchange necessary to permit the Common Shares to commence trading on the Exchange.
7.13 (j) The Company will deliver covenants to the Agent:
(a) at the time of execution of the Final Prospectus by advise the Agent, a long form comfort letter (the “Comfort Letter”) from the Company’s auditors addressed to the Agent and dated as promptly after receiving notice thereof, of the date filing of the Final Prospectus and based on procedures performed within two Business Days any Supplementary Material and to provide copies of the Final Prospectus, in form and content acceptable applicable receipts when obtained pursuant to NP 11-202.
(k) The Company covenants to advise the Agent, acting reasonablypromptly after receiving notice or obtaining knowledge thereof, relating to the verification of the financial information and accounting data contained in the Final Prospectus and to such other matters as the Agent may reasonably require;
(b) at the Closing Time, such legal opinions of the Company’s legal counsel (including U.S. legal counsel), addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content to be agreed upon the Agent and the Company, acting reasonably, relating to matters as the Agent may reasonably require;
(c) at the Closing Time, a certificate (the “Officers’ Certificate”) of the Company signed by its Chief Executive Officer and Chief Financial Officer, addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content acceptable to the Agent, acting reasonably, certifying for and on behalf of the Company and not in their personal capacities that, to the actual knowledge of the persons signing such certificate, after having made due and relevant inquiryof:
(i) the Company has complied with all covenants and satisfied all terms and conditions issuance by any Securities Commission of this Agreement on its part to be complied with and satisfied at any order suspending or prior to preventing the Closing Timeuse of any of the Offering Documents or the institution, threatening or contemplation of any proceeding for any such purposes;
(ii) no any order, ruling or determination having the effect of suspending the sale or ceasing or suspending the trading in any securities of the Company (including the Common Shares) issued by any Securities Commission or prohibiting the sale institution, threatening or contemplation of the Offered Shares or any of the Company’s issued securities has been issued and no proceeding for any such purpose is pending purposes; or, to the knowledge of such officers, threatened;
(iii) any requests made by any Securities Commissions to amend or supplement any of the Company is a “reporting issuer” Offering Documents or its equivalent under the securities laws of British Columbia, Alberta, Saskatchewan, Manitoba and Ontariofor additional information, and no material change relating to the Company has occurred since the date of this Agreement with respect use its commercially reasonable efforts to which the requisite material change report has not been filed and no such disclosure has been made on a confidential basis that remains subject to confidentiality; and
(iv) all of the representations and warranties made by the Company in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(d) the Agent having received certificates dated the Closing Date signed by the Chief Executive Officer of the Company or another officer acceptable to the Agent, acting reasonably, in form and content satisfactory to the Agent, acting reasonably, with respect to the constating documents of the Company; the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Shares, the grant of the Over-Allotment Option, prevent the issuance of any order referred to in (i) above and, if any such order is issued, to obtain the Agent’s Warrantswithdrawal thereof as quickly as possible.
(l) Except to the extent that the Company participates in a takeover bid, merger, arrangement amalgamation, liquidation or other similar business combination or sale transaction, the authorization of this Agreement, Company covenants to use its commercially reasonable efforts to maintain its status as a "reporting issuer" (or the listing equivalent thereof) not in default of the Shares and Agent Warrant Shares on the Exchange and transactions contemplated by this Agreement and the incumbency and signatures of signing officers requirements of the Company;
(e) at the Closing Time, a certificate Canadian Securities Laws of status (or equivalent) for the Company and the Subsidiary dated within one Business Day (or such earlier or later date as the Agent may accept) each of the Closing Date;
(f) at the Closing Time, Qualifying Provinces which have such a certificate of the registrar and transfer agent of the Common Shares, which certifies the number of Common Shares issued and outstanding on the date prior to the Closing Date;
(g) at the Closing Time, a comfort letter, dated the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward concept to the date which is two Business Days prior to years following the Closing Date, the information contained in the Comfort Letter;.
(hm) at the Closing Time, such other materials (the “Closing Materials”) as the Agent may reasonably require and as are customary in a transaction of this nature, and the Closing Materials will be addressed The Company covenants to the Agent and use its commercially reasonable efforts to such parties as may be reasonably directed by the Agent and will be dated as of the Closing Date or such other date as the Agent may reasonably require; and
(i) documents evidencing the necessary approval of the Regulatory Authorities for the Offering and maintain the listing of the Common Shares on the Exchange.
7.14 The Company shall take all necessary steps to complete and file with the Exchange its application for listing with all CSE or such other documentation required by the Exchange, to allow for the listing and halt of the Common Shares on the Exchange prior to the Closing. In the event that the Agent is required to provide recognized stock exchange or deliver any such documentation in connection with the application for listing or take such steps in connection therewith, the Company shall not be in breach of this Section 7.14 to the extent that the listing of the Common Shares on the Exchange concurrently with the Closing is delayed or is not completed due to the Agent’s failure to provide or deliver such documentation or take such steps.
7.15 The Proceeds received by the Company from the sale of the Offered Shares and any Common Shares sold prior quotation system to the date that is three years following the Closing Date so long as the Company meets the minimum listing requirements of the Prospectuses will be applied for the specific purposes more particularly set out under “Use of Proceeds” in the Prospectuses and in compliance with Exchange Policies.
7.16 At the Closing Date, the Offered Shares shall have been made “eligible” by CDS Clearing and Depository Services Inc. (“CDS”) and counsel to the Company shall have provided written confirmation from CDS of such eligibility to Agent’s counsel.
7.17 The Company will use its commercially reasonable best efforts to maintain its status as a reporting issuer not in default of any Applicable Securities Laws in the Offering Jurisdictions for a period of 36 months following the date that its Common Shares are listed and posted for trading on the Exchange and will use its commercially reasonable best efforts to maintain its listing on the Exchange (CSE or such other exchange on which the Common Shares may be listed) during such 36 monthsor quotation system.
7.18 During (n) The Company shall allow the period commencing on Agent to participate in the date hereof and ending on preparation of the Closing Date (unless otherwise specified), Offering Documents that the Company is required to file under Canadian Securities Laws or will promptly provide otherwise use relating to the Agent and the Agent’s counsel, for review, prior Offering.
(o) The Company covenants to filing or issuance of the same, any proposed public disclosure document, including without limitation, any press release (including any press release issued after the Closing Date related deliver to this Agreement and the Offering) or material change report and the Company will use its commercially reasonable efforts to agree with the Agent, acting reasonablywithout charge, as contemporaneously with, or prior to the form filing of, the Preliminary Prospectus and substance of such document.
7.19 The Company shall forthwith notify the Agent upon becoming aware Final Prospectus, unless otherwise indicated, a copy of any breach of any covenant of this Agreement by any party theretodocument filed with, or upon it becoming aware that any representation or warranty of delivered to, the Securities Commissions by the Company contained in this Agreement is or has become untrue or inaccurate in any material respectunder Canadian Securities Laws with such prospectus.
7.20 The Company shall ensure that any news release relating to the Offering and naming the Agent will include substantially the following legend: “NOT FOR DISTRIBUTION TO THE UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” All news releases relating to the Offering will include the following statement: This news release does not constitute an offer to sell or a solicitation of an offer to buy any of the securities. ”.
7.21 The Company shall not reproduce, disseminate, quote from or refer to the Offering or any written or oral opinions, advice, analysis and materials provided by the
Appears in 1 contract
Sources: Agency Agreement
Company’s Covenants. 7.1 The Company makes the following covenants to the Agent and acknowledges that the Agent is relying upon such covenants in entering into this Agreement:
(a) The Company will cause prepare and file the Prospectuses Final Prospectus pursuant to, and in compliance with, NP 11-202 and NI 44-101, and will take all other steps and proceedings that may be necessary to do so, before 5:00 p.m. (Toronto time) on June 24, 2021, and obtain a receipt therefor before 5:00 p.m. (Toronto time) on June 24, 2021 (or such other times or dates as may be agreed to in writing by the Agent).
(b) The Company hereby agrees, provided the Agent has taken all action required by it hereunder to permit the Company to do so, to use its commercially reasonable efforts to comply with all Applicable Securities Laws on a timely basis in connection with the Offering, including the payment of all filing fees required to be paid in connection therewith. Subject to being notified by the Agent of placements made to purchasers in jurisdictions other than Canada, the Company also agrees to file within the periods stipulated under Applicable Securities Laws and at the Company's expense, all private placement forms required to be filed by it in such jurisdictions in connection with the Regulatory Authorities, will deliver Offering and agrees to pay all necessary copies of the Prospectuses to the Regulatory Authorities and will use its best efforts to have the Prospectuses accepted by the Regulatory Authorities and have the Commissions issue receipts for the Preliminary Prospectus and the Final Prospectus. The Company shall fulfill all legal requirements filing fees required to be fulfilled by paid in connection therewith so that the distribution of the Units outside of the Qualifying Provinces may lawfully oc c ur without the necessity of filing a prospectus or any similar disclosure document under Applicable Securities Laws outside of the Qualifying Provinces. The Agent agrees to comply, and agree to assist the Company in complying, with all Applicable Securities Laws in connection therewith, in each case in form and substance satisfactory with the Offering.
(c) The Company covenants that prior to the Agent as evidenced by Closing Time, and at all times until the Agent’s execution of the certificates attached thereto.
7.2 Prior to the completion of the OfferingClosin g Time, the Company shall it will allow the Agent (and its counsel) to review the Offering Documents and conduct all due diligence which the Agent may reasonably require in order to fulfill their statutory obligations as Agent and in order to enable them to execute, acting prudently and responsibly, the certificates required to or which may be executed considered necessary or appropriate by the Agent in such documents, including, without limitation, all corporate and operating records, documentation with respect to financial information (including budgets), copies of the financial statements to be included in the Prospectuses and access to key officers of the Company.
7.3 Agent. The Company will provide the Agent (and its counsel) with commercial copies reasonable access to the Company's senior management and corporate, financial and other rec ords for the purposes of conducting such due diligence. Without limiting the scope of the Prospectuses due diligence inquiry the Agent (or its counsel) may conduct, the Company shall also make available its directors, senior management, auditors and Supplementary Materiallegal counsel to answer any questions which the Agent may have and to participate in one or more due diligence sessions (collectively, the "Due Diligence Sessions") to be delivered held prior to Closing and prior to filing each of the Preliminary Prospectus and the Final Prospectus. The Agent will distribute a list of written questions to be answered in advance of each Due Diligence Session and the Company will provide written or oral responses (the "Responses") to such questions and will use its commercially reasonable efforts to have its auditors provide responses to such questions;
(d) The Company covenants to use its commercially reasonable efforts to fulfil or cause to be fulfilled, at or prior to the Closing Time, each of the conditions required to be fulfilled by it set out in Section 8 hereof.
(e) The Company covenants to use its commercially reasonable efforts to obtain the necessary approval of the CSE for the listing of the Warrants on such conditions as are acceptable to the Agent without chargeand the Company, in such quantities as acting reasonably (the Agent may reasonably request, as soon as possible after the filing “Standard Listing Conditions”). The Company covenants to fulfill all requirements of the Preliminary Prospectus, Final Prospectus or Supplementary Material, as the case may be, but in any event on or before noon (Vancouver time) on the second Business Day after obtaining the receipt therefor (provided the Agent have provided notice of the quantity and delivery instructions of the Preliminary Prospectus, Final Prospectus, or Supplementary Material to be printed prior to filing of such document), as applicable, and such delivery will constitute the Company’s consent to the Agent’s use of such documents CSE in connection with the OfferingFinancing.
7.4 (f) The Company will covenants to fulfill all legal requirements to permit the creation, issuanc e, offering and sale of the Unit Shares and the Warrants comprising the Units, the issuanc e of the Warrant Shares upon the exercise of the Warrants, the granting of the Agent's Warrants and the issuance of the Agent's Warrant Shares upon the exercise thereof, all as contemplated in this Agreement and file with the Exchange or cause to be filed all documents, applications, forms or undertakings required documents and pay all required filing fees, and do all things required to be filed by the rules Company and policies of the Exchange, in order to obtain prior to the Closing Date the requisite acceptance or approval of the Exchange for (i) the Offering; (ii) the conditional listing of the Shares on the Exchange, subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing; and (iii) the conditional listing of, upon their issuance in accordance with the terms of the Agent Warrant Certificates, the Agent Warrant Shares subject only to standard listing conditions, which the Company agrees to fully satisfy in a timely manner forthwith after the Closing.
7.5 On or before the Closing Date, the Company shall take or cause to be taken all reasonable steps action required to be taken by the Company in connection with the issuance and proceedings (including but not limited to the filing sale of the Prospectuses Unit Shares and Warrants comprising the Units, the issuance of the Warrant Shares upon the exercise of the Warrants, and the obtaining granting of a receipt for the Prospectuses from the Commissions under the Applicable Securities Laws), necessary in order to qualify for distribution the Offered Shares for sale to Purchasers resident in the Qualifying Jurisdictions through the Agent and its sub-agents, if any, retained pursuant to Section 3.3 hereof, and to qualify for distribution the Agent’s Warrants's Warrants and the issuance of the Agent's Warrant Shares upon the exercise thereof.
7.6 Following the Effective Date and after consulting with the Exchange, the Company and the Agent will set the Closing Date and the Closing Time. Unless an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for such amendment, the Closing Date will be on or before the day which is 90 days after the Effective Date. If an amendment to the Final Prospectus is filed and the Commissions have issued a receipt for the amendment, the Closing Date will be on or before the day which is 90 days after (g) Until the date of the receipt for such amendmentcompletion of the Distribution of the Units, provided, however, that the Closing Date will not be more than 180 days Company covenants to use its commercially reasonable efforts to ensure the Offering Documents comply at all times with Applicable Securities Laws.
(h) During the period from the date of the receipt for the initial Final Prospectus.
7.7 During the period prior to hereof until the completion of the OfferingDistribution of the Units, the Company shall covenants to promptly notify inform the Agent in writing of:
(a) any material change (actual, contemplated or threatened) in the business, affairs, operations, assets or liabilities (contingent or otherwise) prospects, financial position or capital or ownership of the Company or proposed ownership of the Company (other than a change disclosed in the Prospectuses); and
(b) any change which is of such a nature as to result in a misrepresentation in either of the Prospectuses or any amendment thereto; and any material fact that has arisen or been discovered and that would be required to have been disclosed in the Prospectuses or in Supplementary Material had that fact arisen or been discovered on or prior to the date of the Prospectuses or any Supplementary Material, which change or fact is, or may be, of such a nature as to render the Prospectuses or any Supplementary Material misleading or untrue in any material respect or would result in any of such documents containing a misrepresentation, as defined under Applicable Securities Laws of the Qualifying Jurisdictions, or which would result in any of such documents not complying with any of the Applicable Securities Laws of the Qualifying Jurisdictions or which change would reasonably be expected to have a significant effect on the market price or value of the Offered Shares. The Company shall in good faith discuss with the Agent any change in circumstances (actual or proposed within the knowledge of the Company) which is of such a nature that there is reasonable doubt whether notice needs to be given to the Agent pursuant to this subsection and, in any event, prior to making any filing.
7.8 The Company shall deliver to the Agent duly executed copies of any Supplementary Material required to be filed by the Company in accordance with Section 7.7 above and, if any financial or accounting information is contained in any of the Supplementary Material, an additional comfort letter to that required below.
7.9 The Company shall immediately or in good faith discuss with the Agent any change in circumstances which is of a nature that there is reasonable doubt as to whether notice in writing need to be given to the Agent pursuant to Section 7.7 hereof.
7.10 Now and at all times subsequent hereto during the distribution of the Offered Shares to the public or such longer person of time, if any, while the Final Prospectus continues to be current, the Final Prospectus and any amendments thereto does and will fully comply with the requirements of the Applicable Securities Laws. The Final Prospectus, together with any amendments thereto does and will during such period provide full, true and plain disclosure of all material facts relating to the Company, the Offered Shares and the distribution of the Offered Shares to the public, and does not and will not during such period contain a Misrepresentation; provided that the foregoing covenants of the Company do not and shall not apply with respect to any information or statements contained in the Final Prospectus provided by and relating solely to the Agent.
7.11 During the period of distribution to the public of the Offered Shares, the Company will advise the Agent promptly full particulars of any request of the Commissions or the Exchange for an amendment to the Final Prospectus or any Securities Commission for any additional information, of the issuance by the Commissions, Exchange or any other securities commission, stock exchange or similar regulatory authority, of any cease trade order or similar order relating to the Common Shares or Offered Shares or the use of the Final Prospectus, or of the institution or threat of an institution of any proceedings for that purpose or of the receipt by the Company of any communication from the Commissions, Exchange any Securities Commission or any other securities commission stock exchange or similar regulatory competent authority relating to the Prospectuses Company or which may be relevant to the offering Distribution of the Offered Shares. Units.
(i) The Company will use its best efforts during covenants to apply the period of distribution to net proceeds from the public of Offering as set forth in the Offered Shares to prevent the issuance of any such cease trade order and, if issued during such period, to obtain the withdrawal thereof as soon as possibleFinal Prospectus.
7.12 After the Offering is completed, the Company and the Agent will forthwith file any documents required by the Exchange necessary to permit the Common Shares to commence trading on the Exchange.
7.13 (j) The Company will deliver covenants to the Agent:
(a) at the time of execution of the Final Prospectus by advise the Agent, a long form comfort letter (the “Comfort Letter”) from the Company’s auditors addressed to the Agent and dated as promptly after receiving notice thereof, of the date filing of the Final Prospectus and based on procedures performed within two Business Days any Supplementary Material and to provide copies of the Final Prospectus, in form and content acceptable applicable receipts when obtained pursuant to NP 11-202.
(k) The Company covenants to advise the Agent, acting reasonablypromptly after receiving notice or obtaining knowledge thereof, relating to the verification of the financial information and accounting data contained in the Final Prospectus and to such other matters as the Agent may reasonably require;
(b) at the Closing Time, such legal opinions of the Company’s legal counsel (including U.S. legal counsel), addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content to be agreed upon the Agent and the Company, acting reasonably, relating to matters as the Agent may reasonably require;
(c) at the Closing Time, a certificate (the “Officers’ Certificate”) of the Company signed by its Chief Executive Officer and Chief Financial Officer, addressed to the Agent and its legal counsel and dated as of the Closing Date, in form and content acceptable to the Agent, acting reasonably, certifying for and on behalf of the Company and not in their personal capacities that, to the actual knowledge of the persons signing such certificate, after having made due and relevant inquiryof:
(i) the Company has complied with all covenants and satisfied all terms and conditions issuance by any Securities Commission of this Agreement on its part to be complied with and satisfied at any order suspending or prior to preventing the Closing Timeuse of any of the Offering Documents or the institution, threatening or contemplation of any proceeding for any such purposes;
(ii) no any order, ruling or determination having the effect of suspending the sale or ceasing or suspending the trading in any securities of the Company (including the Common Shares) issued by any Securities Commission or prohibiting the sale institution, threatening or contemplation of the Offered Shares or any of the Company’s issued securities has been issued and no proceeding for any such purpose is pending purposes; or, to the knowledge of such officers, threatened;
(iii) any requests made by any Securities Commissions to amend or supplement any of the Company is a “reporting issuer” Offering Documents or its equivalent under the securities laws of British Columbia, Alberta, Saskatchewan, Manitoba and Ontariofor additional information, and no material change relating to the Company has occurred since the date of this Agreement with respect use its commercially reasonable efforts to which the requisite material change report has not been filed and no such disclosure has been made on a confidential basis that remains subject to confidentiality; and
(iv) all of the representations and warranties made by the Company in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(d) the Agent having received certificates dated the Closing Date signed by the Chief Executive Officer of the Company or another officer acceptable to the Agent, acting reasonably, in form and content satisfactory to the Agent, acting reasonably, with respect to the constating documents of the Company; the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sale of the Offered Shares, the grant of the Over-Allotment Option, prevent the issuance of any order referred to in (i) above and, if any such order is issued, to obtain the Agent’s Warrantswithdrawal thereof as quickly as possible.
(l) Except to the extent that the Company participates in a takeover bid, merger, arrangement amalgamation, liquidation or other similar business combination or sale transaction, the authorization of this Agreement, Company covenants to use its commercially reasonable efforts to maintain its status as a "reporting issuer" (or the listing equivalent thereof) not in default of the Shares and Agent Warrant Shares on the Exchange and transactions contemplated by this Agreement and the incumbency and signatures of signing officers requirements of the Company;
(e) at the Closing Time, a certificate Canadian Securities Laws of status (or equivalent) for the Company and the Subsidiary dated within one Business Day (or such earlier or later date as the Agent may accept) each of the Closing Date;
(f) at the Closing Time, Qualifying Provinces which have such a certificate of the registrar and transfer agent of the Common Shares, which certifies the number of Common Shares issued and outstanding on the date prior to the Closing Date;
(g) at the Closing Time, a comfort letter, dated the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward concept to the date which is two Business Days prior to years following the Closing Date, the information contained in the Comfort Letter;.
(hm) at the Closing Time, such other materials (the “Closing Materials”) as the Agent may reasonably require and as are customary in a transaction of this nature, and the Closing Materials will be addressed The Company covenants to the Agent and use its commercially reasonable efforts to such parties as may be reasonably directed by the Agent and will be dated as of the Closing Date or such other date as the Agent may reasonably require; and
(i) documents evidencing the necessary approval of the Regulatory Authorities for the Offering and maintain the listing of the Common Shares on the Exchange.
7.14 The Company shall take all necessary steps to complete and file with the Exchange its application for listing with all CSE or such other documentation required by the Exchange, to allow for the listing and halt of the Common Shares on the Exchange prior to the Closing. In the event that the Agent is required to provide recognized stock exchange or deliver any such documentation in connection with the application for listing or take such steps in connection therewith, the Company shall not be in breach of this Section 7.14 to the extent that the listing of the Common Shares on the Exchange concurrently with the Closing is delayed or is not completed due to the Agent’s failure to provide or deliver such documentation or take such steps.
7.15 The Proceeds received by the Company from the sale of the Offered Shares and any Common Shares sold prior quotation system to the date that is three years following the Closing Date so long as the Company meets the minimum listing requirements of the Prospectuses will be applied for the specific purposes more particularly set out under “Use of Proceeds” in the Prospectuses and in compliance with Exchange Policies.
7.16 At the Closing Date, the Offered Shares shall have been made “eligible” by CDS Clearing and Depository Services Inc. (“CDS”) and counsel to the Company shall have provided written confirmation from CDS of such eligibility to Agent’s counsel.
7.17 The Company will use its commercially reasonable best efforts to maintain its status as a reporting issuer not in default of any Applicable Securities Laws in the Offering Jurisdictions for a period of 36 months following the date that its Common Shares are listed and posted for trading on the Exchange and will use its commercially reasonable best efforts to maintain its listing on the Exchange (CSE or such other exchange on which the Common Shares may be listed) during such 36 monthsor quotation system.
7.18 During (n) The Company shall allow the period commencing on Agent to participate in the date hereof and ending on preparation of the Closing Date (unless otherwise specified), Offering Documents that the Company is required to file under Canadian Securities Laws or will promptly provide otherwise use relating to the Agent and the Agent’s counsel, for review, prior Offering.
(o) The Company covenants to filing or issuance of the same, any proposed public disclosure document, including without limitation, any press release (including any press release issued after the Closing Date related deliver to this Agreement and the Offering) or material change report and the Company will use its commercially reasonable efforts to agree with the Agent, acting reasonablywithout charge, as contemporaneously with, or prior to the form filing of, the Preliminary Prospectus, the Amended and substance of such document.
7.19 The Company shall forthwith notify Restated Prospectus and the Agent upon becoming aware Final Prospectus, unless otherwise indicated, a copy of any breach of any covenant of this Agreement by any party theretodocument filed with, or upon it becoming aware that any representation or warranty of delivered to, the Securities Commissions by the Company contained in this Agreement is or has become untrue or inaccurate in any material respectunder Canadian Securities Laws with such prospectus.
7.20 The Company shall ensure that any news release relating to the Offering and naming the Agent will include substantially the following legend: “NOT FOR DISTRIBUTION TO THE UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” All news releases relating to the Offering will include the following statement: This news release does not constitute an offer to sell or a solicitation of an offer to buy any of the securities. ”.
7.21 The Company shall not reproduce, disseminate, quote from or refer to the Offering or any written or oral opinions, advice, analysis and materials provided by the
Appears in 1 contract
Sources: Agency Agreement