Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions: (a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably; (b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects; (c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of: (i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or (ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or (iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened; (d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder; (e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement; (f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably; (g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus; (h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and (i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 2 contracts
Samples: Equity Distribution Agreement, Equity Distribution Agreement
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) this Agent Agreement shall be subject to the completion accuracy of and compliance with, as of the date hereof, and on each closing date for the sale of the Common Shares, the representations, covenants, and warranties contained in Sections 4 and 6 hereof, the performance by the Agent Company of a due diligence review satisfactory to the Agent in its sole and reasonable judgmentobligations hereunder, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional further conditions:
(a) the Prospectus Supplement The Agent shall have been filed with received on or before the Qualifying Authorities under commencement date for the Shelf Procedures Offering an opinion from Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx LLP, Spokane, Washington (the “Company Counsel”) satisfactory in form and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with substance to the satisfaction of the Agent and the Agent’s its counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect ofthat:
(i) ceasing, suspending or otherwise restricting Upon the trading of such Placement Shares or any other securities commencement date of the IssuerOffering, orthe Company will be a company in good standing and validly existing under the laws of the State of Alaska, fully authorized to transact the business in which it is engaged, and authorized to enter into this Agent Agreement;
(ii) preventingThe Common Shares, suspending or otherwise restricting the use Warrants and Common Shares issuable upon exercise of the Prospectus or any other prospectus or qualifying document relating to Warrants when issued and sold will be validly and legally issued and the distribution offering of such Placement the Common Shares, orWarrants and Common Shares will be as described in the Memorandum have been duly authorized by the Company;
(iii) suspending The Offering will not result in the qualification breach of any of the terms or conditions of, or constitute a default under any loan commitment, agreement, or other instrument of which such Placement Shares for offering, distribution counsel has knowledge and to which the Company is a party or resale in violate any jurisdiction, and no proceedings for order of any such purpose shall have been initiated, announced court or threatenedany federal or state regulatory body or administrative agency having jurisdiction over the Company or over the Company’s property;
(div) all To the best knowledge of such Company Counsel, upon reasonable inquiry, there is not in existence, pending nor threatened any action, suit or proceeding to which the Company or any director thereof is a party, except as may be set forth in the Memorandum or any supplement thereto, before any court or governmental agency or body, which action, suit or proceeding might, if decided adversely, materially affect the subject matter of this Agent Agreement, the Offering or the financial condition, business or prospects of the Company;
(v) The disclosures to be made in the Memorandum, together with the Company’s offer to each subscriber to provide access to additional information, are sufficient to satisfy the “information requirements” of Rule 502 of Regulation D assuming the receipt by each subscriber of a copy of the Memorandum;
(vi) registration under the 1933 Act of the Securities is not required for the offer and sale thereof to the investors in accordance with the provisions of this Agreement
(vii) In rendering the opinions to be set forth, the Company Counsel, as to factual matters, may rely upon certificates, statements, letters, representations or affidavits of the Company and its officers, any public records of the Company, certificates of public officials and letters of independent certified public accountants.
(b) The Agent will receive on the commencement of the Offering, a certificate from the Company stating that the representations and warranties of the Issuer contained herein and made in any certificates delivered pursuant hereto shall be this Agent Agreement are true and correct, with the same force and effect as if then made, except to made on the extent commencement date of the Offering; the certificate further will state that any such representation or warranty is limited to a specified date, and the Issuer shall have Company has complied with all agreements and all conditions on its part theretofore covenants and that the Memorandum does not include any untrue statement of material fact or omit to be performed or satisfied hereunder;
(e) the Agent shall have received all documents state any material fact required to be delivered stated therein or furnished necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The Agent will receive on the commencement date of the Offering a survey prepared by Company Counsel and addressed to the Company and to the Agent pursuant relating to Section 9, the securities laws of the jurisdictions in each case on or before which the date on which delivery of such document is required pursuant Company and the Agent have agreed to this Agreement;
(f) make offers to potential investors. This survey shall be referred to as the Offered Shares shall have been conditionally approved for listing on the CSE, “Blue Sky Survey.” Company Counsel and the Agent shall have received evidence of agree upon the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused statements to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained made in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1Blue Sky Survey.
Appears in 2 contracts
Samples: Placement Agent Agreement (Little Squaw Gold Mining Co), Placement Agent Agreement (Little Squaw Gold Mining Co)
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent under this Agreement have been undertaken in reliance on, and shall be subject to, the due performance by the Company of its obligations and agreements to be performed hereunder and to the accuracy of and compliance with the representations, warranties, covenants and agreements of the Company contained herein, in each case on and as of the date of delivery of this Agreement and on and as of each date on which Bonds are to be offered and sold pursuant to this Agreement. The obligations of the Agent hereunder with respect to any sale each date on which Bonds are to be offered and sold pursuant to this Agreement are also subject, in the discretion of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of to the following additional further conditions:
(a) The Ordinance, the Prospectus Supplement Loan Agreement, the Tender Agreement and the Continuing Disclosure Agreement shall be in full force and effect and shall not have been filed with amended, modified or supplemented in any way which would materially and adversely affect the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall Bonds, except as may have been complied with agreed to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated in writing by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect such additional resolutions, agreements, certificates (including such certificates as if then made, except may be required by regulations of the Internal Revenue Service in order to establish the extent that any such representation or warranty is limited tax-exempt character of interest on the Bonds) and opinions as shall be necessary to effect a specified date, and secondary remarketing of the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) Bonds in the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to manner contemplated by this Agreement;
(f) , which resolutions, agreements, certificates and opinions, at the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence request of the same Agent, shall be satisfactory in form and substance satisfactory to Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP., bond counsel to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplatedIssuer, or in order Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ib) there There shall not have been no material adverse change in the properties, business, condition (financial or other) or results of operations of the Company since the date of the 2005 Remarketing Supplement or any supplement thereto relating to the Bonds being offered on such date, and no Event of Default under Section 10.01 (a)(i), (ii), (iii), (iv), (v), (vi) or (vii) of the Ordinance, shall have occurred any eventand be continuing and no event shall have occurred and be continuing which, matter with the passage of time or circumstance that giving of notice or both, would permit constitute such an Event of Default and the Agent to terminate this Agreement pursuant to Section 13.1shall receive such certificates, accountants’ letters and opinions of counsel as it shall reasonably request in connection with the remarketing of the Bonds.
Appears in 2 contracts
Samples: Tender Agreement (El Paso Electric Co /Tx/), Remarketing Agreement (El Paso Electric Co /Tx/)
Conditions to Agent’s Obligations. 11.1 The Agent's obligations hereunder, as to the Shares to be delivered at the Closing Date and the occurrence of the Agent hereunder with respect to any sale of Placement Shares (other than Closing and the obligations in Section 2.3) shall be Reorganization, are subject to the completion by condition that all representations and warranties and other statements of the Agent Parties herein are, at and as of a due diligence review satisfactory the commencement of the Subscription and PublicCommunity Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Parties shall have performed in all material respects all of their obligations hereunder to the Agent in its sole and reasonable judgmentbe performed on or before such dates, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional further conditions:
(a) the Prospectus Supplement The Registration Statement shall have been filed with declared effective by the Qualifying Authorities under the Shelf Procedures Commission and the Passport Procedures within MHC Notice and Application approved by the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on OTS prior to the part commencement of the Qualifying Authorities Offering, the Holding Company Application shall have been complied with to approved, and no stop order or other action suspending the satisfaction effectiveness of the Agent Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the Agent’s counselauthorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore initiated or, acting reasonably;to any of the Parties' best knowledge, threatened by the OTS, the Commission, or any other governmental body.
(b) no Supplementary Material (other than documents incorporated by reference At the Closing Date, the MHC, the Holding Company and required to be filed pursuant to NI 51-102) the Association will have completed the conditions precedent to, and shall have been filed conducted the Reorganization in all material respects in accordance with, the Plan, the Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to which the Agent, acting reasonably, objects;Reorganization imposed upon them by the OTS.
(c) at At the Placement Time and at the Settlement Date for such Placement SharesClosing Date, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Agent shall have been issued received:
(1) The favorable opinion, dated as of the Closing Date addressed to Agent and for its benefit, of Xxxxxxx & Xxxxxxxxx, LLP ("S&P") counsel for the Parties, in form and substance acceptable to Agent . S&P shall also provide a letter dated as of the Closing Date addressed to Agent which states that, with respect to the opinion of such counsel nothing has come to the attention of S&P that has would lead S&P to believe that Agent and its counsel are not justified in relying upon such opinion. The opinions of S&P shall in form and substance be to the effect ofthat:
(i) ceasing, suspending or otherwise restricting The Holding Company is a corporation duly organized and validly existing and in good standing under the trading of such Placement Shares or any other securities federal laws of the IssuerUnited States of America, orwith corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Parties.
(ii) preventing, suspending or otherwise restricting The Mutual Holding Company has been incorporated and is validly existing as a mutual holding company in good standing under the use laws of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, orUnited States.
(iii) suspending The Mutual Holding Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, OTS Applications and no proceedings for any such purpose shall have been initiated, announced or threatened;the Prospectus.
(div) all representations The Association was organized and warranties is a validly existing federally-chartered savings and loan association in mutual form of organization and upon the Reorganization will become an organized and validly existing federally-chartered savings bank in capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the OTS Applications and the Association has corporate existence under the laws of the Issuer contained herein and United States. The activities of the Association as described in any certificates delivered pursuant hereto shall be true and correctthe Prospectus, with the same force and effect insofar as if then made, except they are material to the extent that any such representation or warranty is limited to a specified date, operations and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence financial condition of the same in form Association, are permitted by the rules and substance satisfactory to regulations of the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon OTS; the issuance and sale of the Placement capital stock of the Association to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Association and, upon payment therefore in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(v) The Association is a member of the FHLB of New York, the deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; and the description of the liquidation account as set forth in the Application and the Prospectus under the caption "The Reorganization - Effects of Reorganization on Depositors and Borrowers - Liquidation Rights" to the extent that it constitutes matters of law, summaries of legal matters, documents, proceedings or legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(vi) On the Closing Date, the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in as set forth in the Application and the Prospectus under the caption "Capitalization," and to such counsel's knowledge no shares of Common Stock have been issued prior to the Closing Date (except for shares issued to the MHC upon incorporation of the Holding Company); the shares of Common Stock of the Holding Company issued to the MHC have been duly and validly authorized for issuance and will be fully paid and nonassessable; at the time of the Reorganization, the Shares subscribed for pursuant to the Subscription and PublicCommunity Offerings and the Shares issued to the Mutual Holding Company will have been duly and validly authorized for issuance, and when issued and delivered by the Association pursuant to the Plan against payment of the consideration calculated as herein contemplatedset forth in the Plan, will be duly and validly issued and fully paid and non-assessable, provided, however, that Shares issued to the Mutual Holding Company may be subject to restrictions on resale and possible subscription rights of the Association's depositors in accordance with the Reorganization Regulations, and provided further that no opinion need be rendered as to security interests or pledges granted by the purchasers of such Shares; and the issuance of the Shares is not subject to preemptive rights.
(vii) The execution and delivery of this Agreement, and the performance by the Parties of their obligations hereunder, have been validly authorized by all necessary corporate action on the part of the Parties; and this Agreement is a valid and binding obligation of the Parties, enforceable in accordance with its terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions or savings and loan holding companies, or by general equity principles, regardless of whether such enforceability is considered in order to evidence a proceeding in equity or confirm: (i) at law, and except as the accuracy of any obligations of the representations Parties under the indemnification provisions of Sections 9 and 10 hereof may be limited by law or warranties contained herein; unenforceable as against public policy, as to which, no opinion need be expressed).
(iiviii) The Plan has been duly adopted by the fulfillment required vote of any the Directors and members of the Association in the manner required by the Reorganization Regulations and the Association's respective charter and bylaws, provided, however, that as to the tally of votes, such counsel may rely upon the certificate of the inspectors of election.
(ix) Subject to the satisfaction of the conditions contained herein; to the OTS's approval of the Reorganization and the Holding Company Application, no further approval, registration, authorization, consent or (iii) the accuracy and completeness other order of any regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Reorganization, except as may be required under Blue Sky laws, (as to which no opinion need be rendered) or the regulations of the NASD and the NASDAQ Stock Market (as to which no opinion need be rendered). The Reorganization has been consummated in all material respects in accordance with all applicable provisions of the HOLA and the Reorganization Regulations.
(x) The OTS Applications including the Prospectus as filed with the OTS were complete as to form in all material respects and have been approved by the OTS. The OTS has approved the Application and the Holding Company Application under the HOLA, and the issuance of all of the issued and outstanding capital stock of the Association and the purchase thereof by the Holding Company as described in the Prospectus has been authorized by the OTS and to such counsel's knowledge, no action has been taken, or to counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
(xi) At the time the OTS Applications, including the Prospectus contained therein, was approved, the OTS Applications including the Prospectus contained therein (as amended or supplemented, if so amended or supplemented) complied as to form in all material respects with the requirements of all applicable federal laws and the rules and regulations of the OTS (except as to the financial statements, other financial and statistical data and stock valuation and pro forma information included therein as to which such counsel need express no opinion); to such counsel's knowledge, all material documents and exhibits required to be filed with the OTS Applications (as amended or supplemented, if so amended or supplemented) have been so filed. The description in the OTS Applications and the Prospectus contained therein of such documents and exhibits is accurate in all material respects.
(xii) To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Application or the Holding Company Application.
(xiii) The Registration Statement has become effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or threatened.
(xiv) The terms and provisions of the Common Stock of the Holding Company conform to the description thereof contained in the Registration Statement, the OTS Applications and the Prospectus;, and such description describes in all material respects the rights of the holders thereof; the information in the Prospectus under the captions "Restrictions on Acquisition of the Company and the Bank - Absence of Cumulative Voting" and " - Authorization of Preferred Stock" and " - Restrictions on Acquisition of Securities" and "Description of Capital Stock of the Company," to the extent that they constitute matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form of certificate used to evidence the Shares is in due and proper form.
(hxv) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened asserting the ATM Decisions shall remain invalidity of this Agreement, seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or which are required to be disclosed in full force the OTS Applications and effectthe Prospectus, without amendment adverse other than those disclosed therein; provided, that for this purpose, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the Issuer management of the Association, or the Agent; andto such counsel, a present intention to initiate such litigation or proceeding.
(ixvi) there shall not have occurred any eventAt the time that the Registration Statement became effective the Registration Statement, matter including the Prospectus contained therein (as amended or circumstance supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xvii) The information in the OTS Applications and Prospectus under the captions "Regulation," "The Reorganization-Tax Effects," "Taxation," and "Description of Capital Stock of the Company" to the extent that would permit it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects (except as to the Agent financial statements and other financial and statistical data and stock valuation and pro forma data included therein as to terminate this Agreement pursuant to Section 13.1which such counsel need express no opinion).
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations obligation of an Agent, as --------------------------------- agent of the Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent's discretion, to the completion conditions that: (i) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Agent Company under the Act or Exchange Act, (D) at the date of a due diligence review satisfactory each acceptance by the Company of an offer to the Agent in its sole and reasonable judgmentpurchase Securities procured by such Agent, as agent, and to the continuing satisfaction (or waiver each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, in its sole as principal, (E) at each Settlement Date, and unfettered discretion(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the following additional conditions:
case may be, (aii) prior to such Solicitation Time or such Time of Delivery, as the Prospectus Supplement case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed, (iii) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the such Agent, acting reasonably, objects;
(civ) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except orders of the Oregon Public Utility Commission and the Washington Utilities and Transportation Commission which are acceptable to the extent that any such representation or warranty is limited to a specified date, Agents and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon permit the issuance and sale of the Placement Shares as herein contemplatedSecurities substantially in accordance with the terms and conditions of this Agreement, (v) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; Company contemplated by, the Commission, and (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ivi) there shall not have occurred occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any eventsecurities of the Company on the New York Stock Exchange or any relevant exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an engagement by the United States in hostilities or any escalation of hostilities, matter the effect of which, in the judgment of such Agent, makes it impracticable or circumstance that would permit inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) any downgrading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Xxxxx'x Investors Service or Standard & Poor's Corporation. In addition to the foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) this Agreement shall be subject to the completion accuracy of and compliance with, as of the date hereof, and on each closing date for the sale of the Common Shares, the representations, covenants, and warranties contained in Sections 4 and 6 hereof, the performance by the Agent Company of a due diligence review satisfactory to the Agent in its sole and reasonable judgmentobligations hereunder, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional further conditions:
(a) the Prospectus Supplement The Agent shall have been filed with received on or before the Qualifying Authorities under commencement date for the Shelf Procedures Offering an opinion from Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx LLP, Spokane, Washington (the “Company Counsel”) satisfactory in form and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with substance to the satisfaction of the Agent and the Agent’s its counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect ofthat:
(i) ceasing, suspending or otherwise restricting Upon the trading of such Placement Shares or any other securities commencement date of the IssuerOffering, orthe Company will be a company in good standing and validly existing under the laws of the State of Alaska, fully authorized to transact the business in which it is engaged, and authorized to enter into this Agreement;
(ii) preventingThe Common Shares, suspending or otherwise restricting the use Warrants and Common Shares issuable upon exercise of the Prospectus or any other prospectus or qualifying document relating to Warrants when issued and sold will be validly and legally issued and the distribution offering of such Placement the Common Shares, orWarrants and Common Shares will be as described in the minutes of the directors meeting authorizing the Offering;
(iii) suspending The Offering will not result in the qualification breach of any of the terms or conditions of, or constitute a default under any loan commitment, agreement, or other instrument of which such Placement Shares for offering, distribution counsel has knowledge and to which the Company is a party or resale in violate any jurisdiction, and no proceedings for order of any such purpose shall have been initiated, announced court or threatenedany federal or state regulatory body or administrative agency having jurisdiction over the Company or over the Company’s property;
(div) all To the best knowledge of such Company Counsel, upon reasonable inquiry, there is not in existence, pending nor threatened any action, suit or proceeding to which the Company or any director thereof is a party before any court or governmental agency or body, which action, suit or proceeding might, if decided adversely, materially affect the subject matter of this Agreement, the Offering or the financial condition, business or prospects of the Company;
(v) The disclosures to be made in the Offering, together with the Company’s offer to each subscriber to provide access to additional information, are sufficient to satisfy the “information requirements” of Rule 502 of Regulation D;
(vi) registration under the 1933 Act of the Securities is not required for the offer and sale thereof to the investors in accordance with the provisions of this Agreement
(vii) In rendering the opinions to be set forth, the Company Counsel, as to factual matters, may rely upon certificates, statements, letters, representations or affidavits of the Company and its officers, any public records of the Company, certificates of public officials and letters of independent certified public accountants.
(b) The Agent will receive on the commencement of the Offering, a certificate from the Company stating that the representations and warranties of the Issuer contained herein and made in any certificates delivered pursuant hereto shall be this Agreement are true and correct, with the same force and effect as if then made, except to made on the extent commencement date of the Offering; the certificate further will state that any such representation or warranty is limited to a specified date, and the Issuer shall have Company has complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;covenants.
(ec) The Agent will receive on the Agent shall have received all documents required commencement date of the Offering a survey prepared by Company Counsel and addressed to be delivered or furnished the Company and to the Agent pursuant relating to Section 9, the securities laws of the jurisdictions in each case on or before which the date on which delivery of such document is required pursuant Company and the Agent have agreed to this Agreement;
(f) make offers to potential investors. This survey shall be referred to as the Offered Shares shall have been conditionally approved for listing on the CSE, “Blue Sky Survey.” Company Counsel and the Agent shall have received evidence of agree upon the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused statements to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained made in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1Blue Sky Survey.
Appears in 1 contract
Samples: Placement Agent Agreement (Little Squaw Gold Mining Co)
Conditions to Agent’s Obligations. 11.1 The obligations obligation of an Agent, as agent of the Company, at any time (each a “Solicitation Time”), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent’s discretion, to the completion conditions that: (i) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Agent Company under the Act or Exchange Act, (D) at the date of a due diligence review satisfactory each acceptance by the Company of an offer to the Agent in its sole and reasonable judgmentpurchase Securities procured by such Agent, as agent, and to the continuing satisfaction (or waiver each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, in its sole as principal, (E) at each Settlement Date, and unfettered discretion(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the following additional conditions:
case may be, (aii) prior to such Solicitation Time or such Time of Delivery, as the Prospectus Supplement case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed, (iii) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the such Agent, acting reasonably, objects;
(civ) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except to orders of the extent that any such representation or warranty is limited to a specified date, OPUC and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on WUTC which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon permit the issuance and sale of the Placement Shares as herein contemplatedSecurities in accordance with the terms and conditions of this Agreement, (v) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; Company contemplated by, the Commission, and (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ivi) there shall not have occurred occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any eventsecurities of the Company on the New York Stock Exchange or any relevant exchange or a material disruption in securities settlement or clearance services in the United States; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) any material adverse change in the financial markets in the United States, matter any outbreak of hostilities or circumstance that would permit escalation thereof or other calamity or crisis or material adverse change in national financial or economic conditions, in each case, the effect of which, in the reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Xxxxx’x Investors Service or Standard & Poor’s Rating Group. In addition to the foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent’s discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent under this Agreement have been undertaken in reliance on, and shall be subject to, the due performance by the Company of its obligations and agreements to be performed hereunder and to the accuracy of and compliance with the representations, warranties, covenants and agreements of the Company contained herein, in each case on and as of the date of delivery of this Agreement and on and as of each date on which Bonds are to be offered and sold pursuant to this Agreement. The obligations of the Agent hereunder with respect to any sale each date on which Bonds are to be offered and sold pursuant to this Agreement are also subject, in the discretion of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of to the following additional further conditions:
(a) The Ordinance, the Prospectus Supplement Installment Sale Agreement, the Tender Agreement and the Continuing Disclosure Agreement shall be in full force and effect and shall not have been filed with amended, modified or supplemented in any way which would materially and adversely affect the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall Bonds, except as may have been complied with agreed to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated in writing by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect such additional resolutions, agreements, certificates (including such certificates as if then made, except may be required by regulations of the Internal Revenue Service in order to establish the extent that any such representation or warranty is limited tax-exempt character of interest on the Bonds) and opinions as shall be necessary to effect a specified date, and secondary remarketing of the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) Bonds in the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to manner contemplated by this Agreement;
(f) , which resolutions, agreements, certificates and opinions, at the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence request of the same Agent, shall be satisfactory in form and substance satisfactory to Pillsbury Winthrop LLP., bond counsel to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplatedCity, or in order Pillsbury Winthrop LLP, counsel to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ib) there There shall not have been no material adverse change in the properties, business, condition (financial or other) or results of operations of the Company since the date of the 2002 Official Statement or any supplement thereto relating to the Bonds being offered on such date, and no Event of Default under Section 10.01 (a)(i), (ii), (iii), (iv), (v), (vi) or (vii) of the Ordinance shall have occurred any eventand be continuing and no event shall have occurred and be continuing which, matter with the passage of time or circumstance that giving of notice or both, would permit constitute such an Event of Default and the Agent to terminate this Agreement pursuant to Section 13.1shall receive such certificates, accountants' letters and opinions of counsel as it shall reasonably request in connection with the remarketing of the Bonds.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations obligation of the each Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) solicit or receive offers to purchase Securities shall be subject to the completion continued accuracy in all material respects of the representations and warranties of the Company set forth herein, to the performance by the Agent Company of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, obligations hereunder and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) each of the following additional conditionsconditions precedent:
(a) No stop order suspending the Prospectus Supplement effectiveness of the Registration Statement shall have been filed with the Qualifying Authorities under the Shelf Procedures issued and the Passport Procedures within the applicable time period prescribed no proceedings for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities that purpose shall have been complied with instituted or, to the satisfaction knowledge of the Agent and Company or such Agent, shall be contemplated by the Agent’s counsel, acting reasonably;Commission.
(b) no Supplementary Material (other than documents incorporated by reference and Neither the Registration Statement nor the Prospectus, as amended or supplemented, shall contain any untrue statement of a material fact or omit to state a material fact required to be filed pursuant stated therein or necessary to NI 51-102) shall have been filed to which make the Agent, acting reasonably, objects;statements therein not misleading.
(c) at Subsequent to the Placement Time and at date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the Settlement Date for business or properties of the Company or its subsidiaries that, in the judgment of such Placement SharesAgent, no order, ruling or direction materially impairs the investment quality of any Qualifying Authority or other Governmental Authority the Securities.
(d) Such Agent shall have been issued that has received an opinion of Simpxxx Xxxxxxx & Bartxxxx, xxunsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect ofthat:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Issuer, orState of Delaware with full corporate power and authority under such laws to own its properties and carry on the business in which it is engaged; The Chase Manhattan Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New York with full corporate power and authority under such laws to own its properties and carry on the business in which it is now engaged;
(ii) preventingeach Indenture has been duly and validly authorized, suspending executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document laws relating to or affecting the distribution enforcement of such Placement Shares, or
(iii) suspending creditors' rights generally; and each Indenture has been duly qualified under the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, Trust Indenture Act and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except conforms to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained description thereof in the Prospectus;
(hiii) the ATM Decisions shall remain Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in full force accordance with the relevant Indenture and effectthis Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, without amendment adverse and when the Securities have been duly executed by the Company and duly authenticated in accordance with the provisions of the relevant Indenture and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the Issuer benefits of the relevant Indenture;
(iv) the issue and sale of the Securities and the compliance by the Company with all the provisions of the Securities, the Indenture and this Agreement, will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to us and to which the Company is a party or by which the Company may be bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or the Agent; and
(i) there shall not have occurred By-Laws of the Company or any eventstatute or any rule or regulation applicable to the Company of any Federal, matter State or circumstance that would permit other regulatory authority or other governmental body having jurisdiction over the Agent Company or, to terminate this Agreement pursuant to Section 13.1.the best of our knowledge, any order of any court or of any Federal, State or other regulatory authority or other governmental body having jurisdiction over the Company, and no consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body is required
Appears in 1 contract
Samples: Master Agency Agreement (Chase Manhattan Corp /De/)
Conditions to Agent’s Obligations. 11.1 The obligations obligation of the each Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) solicit or receive offers to purchase Securities shall be subject to the completion continued accuracy in all material respects of the representations and warranties of the Company set forth herein, to the performance by the Agent Company of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, obligations hereunder and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) each of the following additional conditionsconditions precedent:
(ai) No stop order suspending the Prospectus Supplement effectiveness of the Registration Statement or suspending the qualification of the applicable Indenture shall have been filed with issued and no proceedings for that purpose shall have been instituted or, to the Qualifying Authorities under knowledge of the Shelf Procedures Company or such Agent, shall be contemplated by the Commission, and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all any requests for additional information on the part of the Qualifying Authorities Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Agent and Lead Agent.
(A) No downgrading shall have occurred nor any notice given of any intended downgrading in the Agent’s counselrating accorded the Securities or any other debt securities of the Company by any “nationally recognized statistical rating organization”, acting reasonably;as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act.
(b) no Supplementary Material (other than documents incorporated by reference Subsequent to the date of this Agreement and required to be filed pursuant to NI 51-102) each Terms Agreement, there shall not have been filed to which occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is, in the judgment of the Lead Agent, acting reasonablyso material and adverse as to make it impracticable or inadvisable to proceed with the offering, objects;sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Such Agent shall have been issued that has received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company or such other counsel as is acceptable to the Lead Agent, including in-house counsel, dated the Closing Date, to the effect ofthat:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the IssuerState of Delaware, orand JPMorgan Chase Bank has been duly incorporated and is validly existing as a banking corporation in good standing under the laws of the State of New York, in each case with full corporate power and authority to conduct its business as described in the Prospectus;
(ii) preventingeach Indenture has been duly and validly authorized, suspending executed and delivered by the Company and duly qualified under the Trust Indenture Act and, assuming the due and valid authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document similar laws relating to the distribution or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of such Placement Shares, orgood faith and fair dealing;
(iii) the Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the relevant Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated in accordance with the provisions of the relevant Indenture and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the relevant Indenture except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iv) the issue and sale of the Securities and the compliance by the Company with all the provisions of the Securities, the Indentures and this Agreement, will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any Federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties;
(v) no consent, approval, authorization, order, registration or qualification of or with any Federal or New York state court or governmental agency or body or any Delaware court or governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) the statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they purport to constitute summaries of the Securities and the Indenture, constitute accurate summaries of the terms of the Securities and the Indenture in all material respects;
(vii) the Registration Statement has become effective under the Act; and, to such counsel’s knowledge, no stop order suspending the qualification effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission; and
(viii) to such Placement Shares for offeringcounsel’s knowledge, distribution there are no contracts or resale documents of a character required to be described in any jurisdictionthe Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein which are not described and file or incorporated by reference as required.
(ix) although such counsel has not verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements made or included in the Registration Statement or the Prospectus except those statements describing the Securities and the Indentures, such counsel, based upon its due diligence review of the affairs of the Company, as described in such opinion, has no proceedings reason to believe that either the Registration Statement or the Prospectus contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that no opinion need be expressed as to (a) financial statements and financial and statistical data, (b) statements made in the Prospectus concerning taxation, provided that such statements are covered by the opinion of counsel for any such purpose shall have the Agents delivered pursuant to Section 6(f) hereto and (c) statements made in the Form T-1 Statement of Eligibility and Qualification of the Trustees); and
(x) this Agreement has been initiatedduly authorized, announced or threatened;executed and delivered by the Company.
(d) all Such Agent shall have received a certificate, dated the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Issuer contained herein and Company in any certificates delivered pursuant hereto shall be this Agreement are true and correct, with that the same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have Company has complied with all agreements and satisfied all conditions on its part theretofore to be performed or satisfied hereunder;hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(e) the Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all documents required material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be delivered or furnished to in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Agent pursuant to Section 9, in each case Prospectus as amended and supplemented on or before the date on which delivery of such document is required pursuant to letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this Agreement;subsection.
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Such Agent shall have received evidence from Cravath, Swaine & Xxxxx LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the same in form Company, the validity of the Securities, the Registration Statement, the Prospectus and substance satisfactory to other related matters as it may reasonably require, and the Agent, acting reasonably;
(g) the Issuer Company shall have delivered or caused furnished to be delivered to the Agent and the Agent’s such counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 6 shall be delivered at the issuance and sale office of the Placement Shares Company at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later than 10:00 a.m., New York City time, on the date of this Agreement or at such time as may be mutually agreed by the Company and the Lead Agent, which in no event shall be later than the time at which the Agents commence solicitation of purchasers of Securities hereunder, the time and date of such delivery being herein contemplatedcalled the “Closing Date”. The Company will furnish each Agent with such conformed copies of such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine (x) to increase pursuant to and in accordance with the terms and provisions of the Indentures, the aggregate principal amount of the Securities that may be authenticated and delivered under the Indentures and/or (y) to register a portion of the Securities under a registration statement or registration statements in order addition to evidence or confirm: the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 5(a), (e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on the accuracy date on which any such supplements or amendments to the Prospectus or the Registration Statements, or any additional registration statements, shall be filed by the Company with the Commission under the Act and shall have been declared or deemed effective, or at such later time and date as shall be mutually agreed by the Company and the Lead Agent, deliver or cause to be delivered to each Agent and its counsel the opinions, certificates, letters and other documents required to be delivered pursuant to paragraphs (c), (d), (e) and (f) of this Section 6, and (iii) if applicable, deliver to each Agent a certificate, dated the date each of the other certificates delivered pursuant to clause (ii) above are being delivered, and executed by the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer, any other Executive Officer of the Company, reaffirming each of the representations or and warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) Company set forth in Section 2 with respect to any registration statement and any prospectus included in such registration statement filed after the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse date hereof relating to the Issuer or Securities. For purposes of the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent documents required to terminate this Agreement be delivered pursuant to the preceding paragraph, the term “Registration Statement” shall be deemed to refer to the Registration Statement referred to in Section 13.12(a), together with any such additional registration statement or registration statements relating to the Securities, in each case as amended or supplemented; the term “Prospectus” shall refer to the Prospectus as so amended or supplemented; and the term “Closing Date” shall be deemed to refer to the date on which the requirements under the preceding paragraph are satisfied. As of and after the requirements of the preceding paragraph are satisfied, the foregoing terms shall be deemed to be so amended for all purposes of this Agreement. In the case of Additional Agents, the conditions set forth in paragraphs (c), (d), (e) and (f) of this Section 6 shall be deemed satisfied by the delivery of copies of the documents delivered to the Additional Agents pursuant to such paragraphs on the Closing Date.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, judgment and to the continuing satisfaction (or waiver by the Agent, Agent in its sole and unfettered discretion) of the following additional conditions, as applicable, which conditions the Company covenants to exercise its reasonable best efforts to have fulfilled on or prior to the Closing Date:
(ai) the Canadian Supplemented Prospectus Supplement and any Amendment shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and Securities Commissions in accordance with Section 9.1(bApplicable Securities Laws;
(ii) hereof the Securities (including, for greater certainty, the common shares of the Company underlying such securities) and the Broker Warrants (including, for greater certainty, the common shares of the Company underlying the Broker Warrants) shall be duly and validly created and issued, all actions required to be taken by or on behalf of the Company, including the passing of all requisite resolutions of directors and the filing of all necessary certificates, instruments and documents with governmental authorities, shall have occurred prior to the Closing Time so as to validly create and issue such securities and so as to have duly and validly authorized and approved this Agreement, the warrant indenture in respect of the Warrants and all requests for additional information matters relating to the foregoing;
(iii) the Company shall have made and/or obtained the necessary filings, approvals, consents and acceptances to or from, as the case may be, the Securities Commissions required to be made or obtained by the Company in connection with the Offering, on terms which are acceptable to the part Company and the Agent, acting reasonably, prior to the Closing Date, it being understood that the Agent will do all that is reasonably required to assist the Company to fulfil this condition;
(iv) the Company will deliver a certificate of the Qualifying Authorities shall have been complied with Company and signed on behalf of the Company, but without personal liability, by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company or such other senior officers of the Company as may be acceptable to the satisfaction of Agent, acting reasonably, addressed to the Agent and its counsel and dated the Closing Date, in form and content satisfactory to the Agent’s counsel, acting reasonably, certifying that:
(A) the Offering Documents meet the requirements hereof and of Applicable Securities Laws and have been modified or supplemented as required herein and, as of the Closing Date, constitute full, true and plain disclosure of all material facts relating to the Securities and do not contain any untrue statement of a material fact required to be stated therein or necessary to make the statements therein not misleading;
(bB) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall all necessary corporate approvals have been filed obtained to which enable the Agent, acting reasonably, objectsCompany to issue and deliver: (i) the Securities; and (ii) the Broker Warrants;
(cC) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling cease trade order or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) similar order preventing, suspending or otherwise materially restricting the Offering, affecting any securities of the Company or objecting to the use of the Canadian Shelf Prospectus or the Canadian Prospectus Supplement or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, part thereof has been issued and no proceedings for any such purpose shall have been initiated, announced or are pending or, to the knowledge of such officers, threatened;
(dD) all to the knowledge of such officers, there has been no material adverse change relating to the Company since the date hereof which has not been generally disclosed;
(E) since the date hereof, no material change relating to the Company, except for the Offering, has occurred with respect to which the requisite material change statement or report has not been filed and no such disclosure has been made;
(F) the representations and warranties of the Issuer Company contained herein and in any certificates delivered pursuant hereto shall be this Agreement (i) qualified by materiality, are true and correctcorrect and (ii) not so qualified are true and correct in all material respects, in each case at the Closing Time, with the same force and effect as if then made, except to made by the extent that any such representation or warranty is limited to a specified date, and Company as at the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunderClosing Time;
(eG) the Agent shall have received common shares sold in the Offering, the common shares underlying all documents required to be delivered or furnished to Warrants and the Agent pursuant to Section 9, in each case on or before common shares underlying the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares Broker Warrants shall have been conditionally approved for listing on the CSETSX Venture Exchange;
(H) the Company has complied, and will comply, with all the covenants and has satisfied (or will satisfy) all the terms and conditions of this Agreement on its part to be complied with or satisfied, other than conditions which have been waived by the Agent, at or prior to the Closing Time; and
(I) such other matters in relation to this Offering as the Company and the Agent shall agree prior to the Closing Time;
(v) executed US Subscription Agreement and Accredited Investor Questionnaires, each in the form attached as an exhibit to the US Memorandum, shall have been obtained from each U.S. investor;
(vi) the Agent shall have received evidence of at the same Closing Time a favourable legal opinion, in form and substance satisfactory to the Agent, acting reasonably, addressed to the Agent and their its counsel from the Company’s Canadian Counsel, Xxxxxx Xxxxxx Xxxxxxx;
(gvii) the Issuer Company shall have delivered or caused cause a favourable legal opinion, in form and substance satisfactory to the Agent acting reasonably, to be delivered to the Agent and its counsel at the Closing Time by the Company’s U.S. counsel that no registration of the Securities is required under the 1933 Act in connection with the offer or sale of the Securities in the United States in the manner contemplated by this Agreement and the US Memorandum to be used in connection with the offer and sale of the Securities in the United States. In providing such opinions, such counsel will be entitled to assume that (i) the representations and warranties of the Company and the Agent set forth in this Agreement are true and correct and (ii) compliance by the Company and the Agent with their respective obligations under this Agreement. Such opinions shall be limited to the federal laws of the United States and shall be subject to such other qualifications and assumptions as are customary and as the Agent and its counsel may agree, acting reasonably;
(viii) the Company will deliver a certificate of the Company, signed by an officer of the Company that is acceptable to the Agent, acting reasonably, addressed to the Agent and its counsel and dated the Closing Date, in form and content satisfactory to the Agent’s counsel, acting reasonably, certifying that:
(A) neither the Company nor any predecessor thereto (including, for greater certainty, Synergist Medical Inc.) has assigned, transferred, pledged or otherwise conveyed any right, title or interest, in full or in part, in and to the Rayman Patents listed in Schedule B to any other party with the exception of Xxxxx Xxxxxx or Titan Medical Inc.; and
(B) neither the Company nor any predecessor thereto (including, for greater certainty, Synergist Medical Inc.) has assigned, transferred, pledged or otherwise conveyed any right, title or interest, in full or in part, in and to the Xxxxxxxx Patents listed in Schedule B to any other party with the exception of Xxxx Xxxxxxxx or Titan Medical Inc.;
(ix) the Agent shall have received at the Closing Time letters dated the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, addressed to the Agent and the directors of the Company from the auditors of the Company, BDO Canada LLP, confirming the continued accuracy of their long form “comfort letter” referred to in Section 9(i)(C) hereof, with such changes as may be necessary to bring the information in such letters forward to a date not more than two business days prior to the Closing Date, which changes shall be acceptable to the Agent, acting reasonably;
(x) the Company shall have furnished to the Agent and its counsel such other documents and certificates or other documents as they may reasonably request for the purpose of enabling them it to pass upon the issuance and sale of the Placement Shares Securities (including, for greater certainty, the common shares of the Company underlying the Securities) and the Broker Warrants (including, for greater certainty, the common shares of the Company underlying the Broker Warrants) as herein contemplated, contemplated or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) or the fulfillment of any of the conditions herein contained herein; or (iii) to the accuracy and completeness of any information contained statements in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the AgentOffering Documents; and
(ixi) there the form and terms of the Warrant Indenture and the Broker Warrants shall not have occurred any event, matter or circumstance that would permit be satisfactory in all respects to the Agent to terminate this Agreement pursuant to Section 13.1Agent.
Appears in 1 contract
Samples: Agency Agreement
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement sell the Shares (other than the obligations in Section 2.3) as provided herein shall be subject to the completion accuracy, as of the date hereof and as of each Closing Date, of the representations and warranties of the Company herein, to the performance by the Agent Company of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, obligations hereunder and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and no stop order suspending the Prospectus Supplement effectiveness of the Registration Statement shall have been filed with issued and no proceeding for that purpose shall have been instituted or, to the Qualifying Authorities under knowledge of the Shelf Procedures Company, threatened by the Commission, and any request of the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests Commission for additional information on (to be included in the part of Registration Statement or the Qualifying Authorities Prospectus or otherwise) shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;'s reasonable satisfaction.
(b) no Supplementary Material (other than documents incorporated by reference The Agent shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent's reasonable opinion is material, or omits to state a fact that in the Agent's reasonable opinion is material and is required to be filed pursuant stated therein or is necessary to NI 51-102) shall have been filed to which make the Agent, acting reasonably, objects;statements therein not misleading.
(c) at Except as contemplated in the Placement Time Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, on a consolidated basis, in the capital stock of the Company and its subsidiaries, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries, or a downgrading in or withdrawal of the rating assigned to any of the Company's securities by any rating organization, and no rating organization shall have publicly announced that it has under surveillance or review its rating of any of the Company's securities.
(d) The Agent shall have received on the date hereof and at the Settlement Date for every other date specified in Section 4(l) hereof, opinions of Company Counsel, dated as of such Placement Sharesdates, no orderrespectively, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has substantially to the effect ofthat:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Issuer, orState of Delaware and has full corporate power and authority to conduct its business as described in the Prospectus;
(ii) preventingeach Subsidiary that is a corporation incorporated under the laws of the States of Delaware, Texas or New York has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus.
(iii) the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the purchasers thereof pursuant to this Agreement, will be fully paid and nonassessable and conform in all material respects to the description thereof in the Prospectus and the stockholders of the Company have no preemptive rights with respect to the Shares pursuant to the General Corporation Law of the State of Delaware, the Company's certificate of incorporation or to such counsel's knowledge, any agreement;
(iv) the Registration Statement has become effective under the Securities Act and has registered under the Securities Act the offer and sale of the Shares in the manner contemplated by this Agreement and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or otherwise restricting threatened by the use Commission;
(v) the Registration Statement, when it became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, (other than financial statements and related schedules or other information of a financial or reserve engineering nature therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations; and the documents (other than exhibits and other than financial statements and related schedules or other information of a financial or reserve engineering nature therein, as to which such counsel need express no opinion) incorporated by reference in the Prospectus or any other prospectus amendment or qualifying document relating supplement thereto, when filed with the Commission under the Exchange Act, complied as to form in all material respects with the distribution requirements of such Placement Sharesthe Securities Act or the Exchange Act, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdictionas applicable, and no proceedings for any such purpose shall have been initiated, announced or threatenedthe Rules and Regulations;
(dvi) the description in the Prospectus of statutes, legal and governmental proceedings and contracts are accurate in all material respects; and such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in or incorporated by reference into the Prospectus that are not filed, described or incorporated by reference as required;
(vii) the statements set forth in the Prospectus under the caption "Description of Capital Stock," insofar as they purport to constitute a summary of the terms of the Shares, and under the caption "Plan of Distribution," insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate in all material respects;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) the execution, delivery and performance of this Agreement by the Company do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it is bound or to which any of the property of the Company or any of its subsidiaries is subject, nor will such action result in the violation of the Company's charter or by-laws, or any statute, order, rule or regulation known to such counsel of any court, governmental agency or body having jurisdiction over the Company, any of its subsidiaries or any of their properties except for such breaches, defaults violations or conflicts that would not in the aggregate have a material adverse effect on the Company's ability to perform its obligations under this Agreement or on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise (except that such counsel need express no opinion with respect to federal or state securities or Blue Sky laws); and no consent, approval, authorization or order of, or filing with, any court or governmental agency or regulatory body is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Shares by the Company, except such as have been obtained under the Securities Act and such as may be required under state securities or blue sky laws in connection with the sale and distribution of the Shares by the Agent; and
(x) to such counsel's knowledge and other than as set forth in the Prospectus, there are no actions, suits or proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, or the results of operations, stockholders' equity or business of the Company and its subsidiaries considered as one enterprise; and, to such counsel's knowledge, no such proceedings are threatened. In addition, such counsel shall state that such counsel has no reason to believe that either the Registration Statement, at the time it (including each Post-Effective Amendment thereto) became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus and any amendments or supplements thereto, on the date of such opinion and at each Filing Date on or prior to the date of the opinion, included an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements and related schedules or other financial data or information of a reserve engineering nature included in any of the documents mentioned in this paragraph.
(e) On the date hereof and at such other dates specified in Section 4(m) hereof, the Agent shall have received a letter from PricewaterhouseCoopers LLP, independent public accountant for the Company, or another independent accountant satisfactory to the Agent, dated the date of delivery thereof, substantially in the form attached hereto as Annex I and otherwise in form and substance satisfactory to Agent.
(f) On the date hereof and at such other dates specified in Section 4(n) hereof, the Agent shall have received a certificate of the chief petroleum engineer of the Company, dated as of each such date, to the effect that, after reasonable investigation, nothing has come to his attention since the date of the preparation of the estimates of the Company's proved reserves included or incorporated by reference in the Prospectus that would cause him to believe that such estimates in the aggregate were materially incorrect as of such date.
(g) The Agent shall have received from the Company a certificate, or certificates, signed by the President or a Vice President and by the principal financial or accounting officer of the Company, dated as of the date hereof and on such other dates specified in Section 4(k), to the effect that, to their knowledge based upon reasonable investigation:
(i) the representations and warranties of the Issuer contained herein and Company in any certificates delivered pursuant hereto shall be this Agreement are true and correct, with the same force and effect as if then made, except to made at and as of the extent that any such representation date hereof or warranty is limited to a specified datethe Filing Date, and the Issuer shall have Company has complied with all the agreements and satisfied all the conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered at or furnished prior to the Agent pursuant to Section 9, in date hereof and each such Filing Date (as the case on or before the date on which delivery of such document is required may be) pursuant to this Agreement;
(fii) no stop order suspending the Offered effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the knowledge of such officer after due inquiry, is threatened, by the Commission;
(iii) since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the Rules and Regulations that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(A) neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with the business of the Company and its subsidiaries, taken as a whole, from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus that has had or could reasonably be expected to have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (B) since the respective dates as of which information is given in the Prospectus, there has not been any material adverse change, on a consolidated basis, in the business, financial condition or results of operations of the Company and its subsidiaries considered as one enterprise that has not been described in an amendment or supplement to the Registration Statement or the Prospectus.
(h) The Shares shall have been conditionally approved for listing listing, subject to notice of issuance,on the CSENYSE.
(i) On the date hereof and on each Filing Date, and the Company shall have furnished to the Agent shall have received evidence of such appropriate further information, certificates and documents as the same Agent may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered . The Company will furnish to the Agent such conformed copies of such opinions, certificates, letters and the Agent’s counsel such other certificates or other documents as they the Agent may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1request.
Appears in 1 contract
Samples: Sales Agency Agreement (Newfield Exploration Co /De/)
Conditions to Agent’s Obligations. 11.1 The obligations obligation of --------------------------------- an Agent, as agent of the Company, at any time (each a "Solicitation Time") to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to purchase Securities as principal, pursuant to any sale Terms Agreement or otherwise, in each case, shall be subject, in such Agent's discretion, to the conditions that: (i) all of Placement Shares the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), (C) each time a document incorporated by reference in the obligations in Section 2.3) Prospectus as amended or supplemented shall be subject to the completion filed by the Agent of a due diligence review satisfactory to Company under the Agent in its sole and reasonable judgmentAct or Exchange Act, and (D) on such Solicitation Time or Time of Delivery, as the case may be, (ii) prior to such Solicitation Time or Time of Delivery, as the continuing satisfaction (or waiver by case may be, the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed, (iii) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the such Agent, acting reasonably, objects;
and (c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(iiv) there shall not have occurred occurred: (A) any general suspension of trading in securities on the New York Stock Exchange or the establishment by the New York Stock Exchange or by the Commission or by any Federal or State agency or by the decision of any court, any limitation on prices for such trading or any restrictions on the distribution of securities, all to such a degree as, in such Agent's judgment, would restrict materially a free market for the Securities; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event, matter in the judgment of such Agent, makes it impracticable or circumstance that would permit inadvisable to proceed with the Agent solicitation of offers to terminate purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement pursuant and, if applicable, any Terms Agreement or other such agreement; (D) a substantial loss, on the part of the Company or any Subsidiary, by fire, explosion, flood, accident or other calamity which renders it inadvisable to Section 13.1consummate the sale of the Securities (regardless of whether or not such loss shall have been insured); or (E) either (i) a downgrading shall have occurred in the rating accorded the Company's long-term debt by Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation or (ii) either of such organizations shall have publicly announced that it has under surveillance or review with a possibility of downgrading its rating of any of the Company's long-term debt.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent under this Agreement have been undertaken in reliance on, and shall be subject to, the due performance by the Company of its obligations and agreements to be performed hereunder and to the accuracy of and compliance with the representations, warranties, covenants and agreements of the Company contained herein, in each case on and as of the date of delivery of this Agreement and on and as of each date on which Bonds are to be offered and sold pursuant to this Agreement. The obligations of the Agent hereunder with respect to any sale each date on which Bonds are to be offered and sold pursuant to this Agreement are also subject, in the discretion of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of to the following additional further conditions:
(a) The Indenture, the Prospectus Supplement Loan Agreement, the Tender Agreement and the Continuing Disclosure Agreements shall be in full force and effect and shall not have been filed with amended, modified or supplemented in any way which would materially and adversely affect the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall Bonds, except as may have been complied with agreed to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated in writing by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect such additional resolutions, agreements, certificates (including such certificates as if then made, except may be required by regulations of the Internal Revenue Service in order to establish the extent that any such representation or warranty is limited tax-exempt character of interest on the Bonds) and opinions as shall be necessary to effect a specified date, and secondary remarketing of the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) Bonds in the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to manner contemplated by this Agreement;
(f) , which resolutions, agreements, certificates and opinions, at the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence request of the same Agent, shall be satisfactory in form and substance satisfactory to Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP., bond counsel to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplatedIssuer, or in order Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ib) there There shall not have been no material adverse change in the properties, business, condition (financial or other) or results of operations of the Company since the date of the 2005 Official Statements or any supplement thereto relating to the Bonds being offered on such date, and no Event of Default under Section 10.01 (a)(i), (ii), (iii), (iv), (v), (vi) or (vii) of the Indenture, shall have occurred any eventand be continuing and no event shall have occurred and be continuing which, matter with the passage of time or circumstance that giving of notice or both, would permit constitute such an Event of Default and the Agent to terminate this Agreement pursuant to Section 13.1shall receive such certificates, accountants’ letters and opinions of counsel as it shall reasonably request in connection with the remarketing of the Bonds.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations obligation --------------------------------- of an Agent, as agent of the Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent's discretion, to the completion conditions that: (i) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Agent Company under the Act or Exchange Act, (D) at the date of a due diligence review satisfactory each acceptance by the Company of an offer to the Agent in its sole and reasonable judgmentpurchase Securities procured by such Agent, as agent, and to the continuing satisfaction (or waiver each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, in its sole as principal, (E) at each Settlement Date, and unfettered discretion(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the following additional conditions:
case may be, (aii) prior to such Solicitation Time or such Time of Delivery, as the Prospectus Supplement case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed, (iii) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the such Agent, acting reasonably, objects;
(civ) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except orders of the Public Utility Commission of Oregon and the Washington Utilities and Transportation Commission which are acceptable to the extent that any such representation or warranty is limited to a specified date, Agents and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon permit the issuance and sale of the Placement Shares as herein contemplatedSecurities substantially in accordance with the terms and conditions of this Agreement, (v) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; Company contemplated by, the Commission, and (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ivi) there shall not have occurred occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any eventsecurities of the Company on the Nasdaq National Market or any relevant exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an engagement by the United States in hostilities or any escalation of hostilities, matter the effect of which, in the judgment of such Agent, makes it impracticable or circumstance that would permit inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) any downgrading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Xxxxx'x Investors Service or Standard & Poor's Corporation. In addition to the foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations Your obligation to solicit or receive offers to purchase Program Securities as an agent of the Agent hereunder with respect Company and your obligation to purchase Program Securities as principal pursuant to any sale of Placement Shares (other than the obligations in Section 2.3) Terms Agreement shall be subject to the completion continued accuracy in all material respects of the representations and warranties of the Company set forth herein, to the performance by the Agent Company of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, obligations hereunder and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) each of the following additional conditionsconditions precedent:
(ai) No stop order suspending the Prospectus Supplement effectiveness of the Registration Statement or suspending the qualification of the Indenture shall have been filed with the Qualifying Authorities issued and no proceedings for that purpose or pursuant to Section 8A under the Shelf Procedures Act shall have been instituted or, to the knowledge of the Company or such Agent, shall be contemplated by the Commission, and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all any requests for additional information on the part of the Qualifying Authorities Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Agent such Agents.
(ii) (A) No downgrading shall have occurred in the rating accorded the Program Securities or any other debt securities of the Company by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (B) no such organization shall have publicly announced that it has been placed under surveillance or review, or has changed its outlook with respect to, its rating of the Agent’s counselProgram Securities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(iii) The Prospectus, acting reasonably;each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Act).
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating Subsequent to the distribution date of such Placement Sharesthis Agreement and any Terms Agreement, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any eventchange, matter or circumstance any development involving a prospective change, in or affecting the business or properties of the Company or its subsidiaries that would permit is not described in the Time of Sale Information and that is, in the judgment of such Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Program Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(c) Such Agent shall have received an opinion letter of Simpson Thacher & Bartlett LLP, counsel for the Company or such oxxxx xxxxxxx xx is xxxxxxxble to terminate such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing and in good standing as a national banking association under the laws of the United States, in each case with full corporate power and authority to conduct its business as described in the Registration Statement and the Prospectus.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming that the Indenture is the valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(iii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing and subject to considerations of public policy.
(iv) The Unit Agreements and Warrant Agreements have been duly authorized by the Company and, when duly executed and delivered by the Company will be valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(v) The Notes have been duly authorized by the Company and, when the terms of the Notes and their issue and sale have been duly established in accordance with the Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Notes have been duly executed by the Company and duly authenticated by the Trustee in accordance with the provisions of the Indenture, and upon payment and delivery in accordance with this Agreement, the Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be entitled to the benefits of the Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(vi) The Warrants have been duly authorized by the Company and, when the applicable Warrant Agreement has been duly executed and delivered by the Company and the terms of the Warrants and their issue and sale have been duly established in accordance with the applicable Warrant Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Warrants have been duly executed by the Company and duly countersigned by the Warrant Agent in accordance with the applicable Warrant Agreement, and upon payment and delivery in accordance with this Agreement, the Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be entitled to the benefits of the applicable Warrant Agreement, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(vii) The Units have been duly authorized by the Company and, when the applicable Unit Agreement has been duly executed and delivered by the Company and the terms of the Units and their issue and sale have been duly established in accordance with the Unit Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Units have been duly executed by the Company and duly countersigned by the Unit Agent in accordance with the Unit Agreement, and upon payment and delivery in accordance with this Agreement, the Units will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the benefits of the Unit Agreement, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(viii) The issue and sale of the Program Securities and the execution, delivery and performance by the Company of this Agreement, the Indenture, the Warrant Agreements and the Unit Agreement will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that it is understood that no opinion is given in this paragraph (viii) with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(ix) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Program Securities and the compliance by the Company with the provisions of this Agreement and the Indenture, except that it is understood that no opinion is given in this paragraph (ix) with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(x) The Registration Statement has become effective under the Act; and the Prospectus was filed on December 1, 2005 pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued or proceeding for that purpose or pursuant to Section 13.18A under the Act has been instituted or threatened by the Commission.
(xi) The statements made in the Prospectus under the captions "Description of Notes," "General Terms of the Notes," "Description of Debt Securities," "Description of Warrants" and "Description of Units," insofxx xx xxxx xxxxxxx xx xxxxxxxxxx xxxxxxxxx xx xxxxxin terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects (subject to the insertion in the Notes, the Warrants and/or the Units of the maturity dates, interest rates and other similar terms thereof which are to be described in Term Sheets and Pricing Supplements to the Prospectus).
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a ongoing due diligence review reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the IssuerCorporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer Corporation contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified date, and (or is updated as permitted by Section 4.7 or 9.3);
(e) the Issuer Corporation shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 98.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Shares Corporation shall have been conditionally approved for listing on duly notified the CSE, CSE of the issuance of the Placement Shares and the Agent CSE shall not have received evidence of objected thereto or denied the same in form and substance satisfactory to the Agent, acting reasonablylisting thereof;
(gh) the Issuer Corporation shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a ongoing due diligence review reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s 's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the IssuerCorporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer Corporation contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified date, and (or is updated as permitted by Section 4.7 or 9.3);
(e) the Issuer Corporation shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 98.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Placement Shares shall have been conditionally approved for listing on the CSETSX, and subject only to fulfilling customary conditions with the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;TSX; and
(gh) the Issuer Corporation shall have delivered or caused to be delivered to the Agent and the Agent’s 's counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement
Conditions to Agent’s Obligations. 11.1 The Agents' obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be are subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) On the Prospectus Supplement date hereof, the Agents shall have been filed with received the Qualifying Authorities under following legal opinions, dated as of the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing date hereof and in accordance with Section 9.1(b) hereof form and all requests for additional information on the part of the Qualifying Authorities shall have been complied with substance reasonably satisfactory to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect ofAgents:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities an opinion of the IssuerGeneral Counsel or Associate General Counsel of the Company, orsubstantially in the form heretofore delivered to each of you; and
(ii) preventingan opinion of Xxxxx Xxxx LLP or other counsel to the Company, suspending or otherwise restricting substantially in the use form heretofore delivered to each of you.
(b) On the date hereof, the Agents shall have received a certificate of the Prospectus Company, signed by the Chairman of the Board, the President, the Treasurer, any Assistant Treasurer, or any other prospectus or qualifying document relating Vice President, dated as of the date hereof, to the distribution effect that, to the best of the knowledge of the signer of such Placement Sharescertificate (i) since the date of the most recent financial statements included or incorporated by reference in the Prospectus, or
as amended or supplemented, there has been no material adverse change in the condition of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement and the Prospectus, as amended or supplemented, (iiiii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all other representations and warranties of the Issuer Company contained herein and in any certificates delivered pursuant hereto shall be this Agreement are true and correctcorrect in all material respects on and as of the date of such certificate, with (iii) the same force and effect as if then made, except to the extent that any such representation Company has performed or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and satisfied all conditions on its part theretofore to be performed or satisfied hereunder;hereunder at or prior to the date of such certificate, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the SEC.
(ec) On the Agent date hereof, the Agents shall have received all documents required to be delivered or furnished to a letter from the Agent pursuant to Section 9Company's independent public accountants, in each case on or before dated as of the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, hereof and the Agent shall have received evidence of the same in form and substance reasonably satisfactory to the AgentAgents, acting reasonably;confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the regulations promulgated thereunder (the "1933 Act Regulations"), and containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus.
(gd) On the Issuer date hereof, counsel to the Agents shall have delivered or caused to be delivered to the Agent been furnished with such documents and the Agent’s opinions as such counsel such other certificates or other documents as they may reasonably request require for the purpose of enabling them such counsel to pass upon the issuance and sale of the Placement Shares Notes as herein contemplated, or in order to evidence or confirm: (i) the accuracy and completeness of any of the representations and warranties, or warranties contained herein; (ii) the fulfillment of any of the conditions conditions, contained herein; or (iii) and all proceedings taken by the accuracy Company in connection with the issuance and completeness sale of any information contained Notes as herein contemplated shall be reasonably satisfactory in the Prospectus;
(h) the ATM Decisions shall remain in full force form and effect, without amendment adverse substance to the Issuer or Purchasing Agent and to counsel to the Agent; and
Agents. The obligations of the Purchasing Agent to purchase Notes as principal, both under this Agreement and under any Terms Agreement, are subject to the conditions that (i) no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the SEC and (ii) there shall not have occurred been no material adverse change in the condition of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement or the Prospectus, as supplemented or amended, each of which conditions shall be met on the date of the Terms Agreement and on the corresponding Settlement Date (as defined herein). Further, if specifically called for by any eventwritten agreement by the Purchasing Agent, matter or circumstance that would permit including a Terms Agreement, to purchase Notes as principal, the Agent Purchasing Agent's obligations hereunder and under such agreement, shall be subject to terminate this Agreement pursuant such additional conditions, including those set forth in clauses (a), (b) and (c) above, as agreed to Section 13.1by the parties, each of which such agreed conditions shall be met on the corresponding Settlement Date.
Appears in 1 contract
Samples: Selling Agent Agreement (Anheuser Busch Companies Inc)
Conditions to Agent’s Obligations. 11.1 The obligations obligation of the each Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) solicit or receive offers to purchase Securities shall be subject to the completion continued accuracy in all material respects of the representations and warranties of the Company set forth herein, to the performance by the Agent Company of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, obligations hereunder and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) each of the following additional conditionsconditions precedent:
(ai) No stop order suspending the Prospectus Supplement effectiveness of the Registration Statement or suspending the qualification of the applicable Indenture shall have been filed with issued and no proceedings for that purpose shall have been instituted or, to the Qualifying Authorities under knowledge of the Shelf Procedures Company or such Agent, shall be contemplated by the Commission, and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all any requests for additional information on the part of the Qualifying Authorities Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Agent and Lead Agent.
(ii) (A) No downgrading shall have occurred nor any notice given of any intended downgrading in the Agent’s counselrating accorded the Securities or any other debt securities of the Company by any “nationally recognized statistical rating organization”, acting reasonably;as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act.
(b) no Supplementary Material (other than documents incorporated by reference Subsequent to the date of this Agreement and required to be filed pursuant to NI 51-102) each Terms Agreement, there shall not have been filed to which occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is, in the judgment of the Lead Agent, acting reasonablyso material and adverse as to make it impracticable or inadvisable to proceed with the offering, objects;sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Such Agent shall have been issued that has received an opinion of Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel for the Company or such other counsel as is acceptable to the Lead Agent, including in-house counsel, dated the Closing Date, to the effect ofthat:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the IssuerState of Delaware, orand JPMorgan Chase Bank has been duly incorporated and is validly existing as a banking corporation in good standing under the laws of the State of New York, in each case with full corporate power and authority to conduct its business as described in the Prospectus;
(ii) preventingeach Indenture has been duly and validly authorized, suspending executed and delivered by the Company and duly qualified under the Trust Indenture Act and, assuming the due and valid authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document similar laws relating to the distribution or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of such Placement Shares, orgood faith and fair dealing;
(iii) the Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the relevant Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated in accordance with the provisions of the relevant Indenture and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the relevant Indenture except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iv) the issue and sale of the Securities and the compliance by the Company with all the provisions of the Securities, the Indentures and this Agreement, will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any Federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties;
(v) no consent, approval, authorization, order, registration or qualification of or with any Federal or New York state court or governmental agency or body or any Delaware court or governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) the statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they purport to constitute summaries of the Securities and the Indenture, constitute accurate summaries of the terms of the Securities and the Indenture in all material respects;
(vii) the Registration Statement has become effective under the Act; and, to such counsel’s knowledge, no stop order suspending the qualification effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission; and
(viii) to such Placement Shares for offeringcounsel’s knowledge, distribution there are no contracts or resale documents of a character required to be described in any jurisdictionthe Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein which are not described and file or incorporated by reference as required.
(ix) although such counsel has not verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements made or included in the Registration Statement or the Prospectus except those statements describing the Securities and the Indentures, such counsel, based upon its due diligence review of the affairs of the Company, as described in such opinion, has no proceedings reason to believe that either the Registration Statement or the Prospectus contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that no opinion need be expressed as to (a) financial statements and financial and statistical data, (b) statements made in the Prospectus concerning taxation, provided that such statements are covered by the opinion of counsel for any such purpose shall have the Agents delivered pursuant to Section 6(f) hereto and (c) statements made in the Form T-1 Statement of Eligibility and Qualification of the Trustees); and
(x) this Agreement has been initiatedduly authorized, announced or threatened;executed and delivered by the Company.
(d) all Such Agent shall have received a certificate, dated the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Issuer contained herein and Company in any certificates delivered pursuant hereto shall be this Agreement are true and correct, with that the same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have Company has complied with all agreements and satisfied all conditions on its part theretofore to be performed or satisfied hereunder;hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(e) the Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all documents required material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be delivered or furnished to in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Agent pursuant to Section 9, in each case Prospectus as amended and supplemented on or before the date on which delivery of such document is required pursuant to letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this Agreement;subsection.
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Such Agent shall have received evidence from Cravath, Swaine & Mxxxx LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the same in form Company, the validity of the Securities, the Registration Statement, the Prospectus and substance satisfactory to other related matters as it may reasonably require, and the Agent, acting reasonably;
(g) the Issuer Company shall have delivered or caused furnished to be delivered to the Agent and the Agent’s such counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 6 shall be delivered at the issuance and sale office of the Placement Shares Company at 270 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xot later than 10:00 a.m., New York City time, on the date of this Agreement or at such time as may be mutually agreed by the Company and the Lead Agent, which in no event shall be later than the time at which the Agents commence solicitation of purchasers of Securities hereunder, the time and date of such delivery being herein contemplatedcalled the “Closing Date”. The Company will furnish each Agent with such conformed copies of such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine (x) to increase pursuant to and in accordance with the terms and provisions of the Indentures, the aggregate principal amount of the Securities that may be authenticated and delivered under the Indentures and/or (y) to register a portion of the Securities under a registration statement or registration statements in order addition to evidence or confirm: the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 5(a), (e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on the accuracy date on which any such supplements or amendments to the Prospectus or the Registration Statements, or any additional registration statements, shall be filed by the Company with the Commission under the Act and shall have been declared or deemed effective, or at such later time and date as shall be mutually agreed by the Company and the Lead Agent, deliver or cause to be delivered to each Agent and its counsel the opinions, certificates, letters and other documents required to be delivered pursuant to paragraphs (c), (d), (e) and (f) of this Section 6, and (iii) if applicable, deliver to each Agent a certificate, dated the date each of the other certificates delivered pursuant to clause (ii) above are being delivered, and executed by the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer, any other Executive Officer of the Company, reaffirming each of the representations or and warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) Company set forth in Section 2 with respect to any registration statement and any prospectus included in such registration statement filed after the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse date hereof relating to the Issuer or Securities. For purposes of the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent documents required to terminate this Agreement be delivered pursuant to the preceding paragraph, the term “Registration Statement” shall be deemed to refer to the Registration Statement referred to in Section 13.12(a), together with any such additional registration statement or registration statements relating to the Securities, in each case as amended or supplemented; the term “Prospectus” shall refer to the Prospectus as so amended or supplemented; and the term “Closing Date” shall be deemed to refer to the date on which the requirements under the preceding paragraph are satisfied. As of and after the requirements of the preceding paragraph are satisfied, the foregoing terms shall be deemed to be so amended for all purposes of this Agreement. In the case of Additional Agents, the conditions set forth in paragraphs (c), (d), (e) and (f) of this Section 6 shall be deemed satisfied by the delivery of copies of the documents delivered to the Additional Agents pursuant to such paragraphs on the Closing Date.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a ongoing due diligence review reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s 's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the IssuerCorporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer Corporation contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified date, and (or is updated as permitted by Section 4.7 or 9.3);
(e) the Issuer Corporation shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 98.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Placement Shares shall have been conditionally approved for listing on the CSETSX-V, and subject only to fulfilling customary conditions with the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;TSX-V; and
(gh) the Issuer Corporation shall have delivered or caused to be delivered to the Agent and the Agent’s 's counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement (HIVE Blockchain Technologies Ltd.)
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall not contain any misrepresentation and shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s 's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Entity shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the IssuerCompany, or
or (ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer Company contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified datedate or is updated, and qualified or clarified as permitted by Section 4.7 or Section 9.3, unless the Issuer Agent has notified the Company that it wishes to suspend the sale of Placement Shares or terminate this Agreement in response to any such update, qualification or clarification;
(e) the Company shall have complied in all material respects with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Shares shall have been conditionally approved for listing on the CSETSXV and the Company shall have applied to list the Offered Shares on the NYSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably, and the Common Shares shall not have been suspended on the TSXV or the NYSE;
(gh) the Issuer Company shall have delivered or caused to be delivered to the Agent and the Agent’s 's counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
Prospectus and the documents incorporated (hor deemed to be incorporated) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agentby reference therein; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement (Vizsla Silver Corp.)
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale and the occurrence of Placement Shares (other than the obligations in Section 2.3) shall be Closing and the Conversion are subject to the completion by condition that all representations and warranties of the Agent Primary Parties herein contained are, at and as of a due diligence review satisfactory the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to the Agent in its sole and reasonable judgment, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional further conditions:
(a) the Prospectus Supplement The Registration Statement shall have been filed with declared effective by the Qualifying Authorities under the Shelf Procedures Commission and the Passport Procedures within Conversion Application and the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities Merger Application shall have been complied with to approved by the satisfaction of the Agent OCC and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) Holding Company Application shall have been filed to which approved by the AgentFRB, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority stop order or other Governmental Authority action suspending the effectiveness of the Registration Statement shall have been issued that has under the effect of:
(i) ceasing1933 Act or proceedings therefor initiated or, suspending or otherwise restricting to the trading knowledge of such Placement Shares the Primary Parties, threatened by the Commission or any state authority and no order or other securities of action suspending the Issuer, or
(ii) preventing, suspending or otherwise restricting the authorization for use of the Prospectus or any other prospectus or qualifying document relating to the distribution consummation of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose Conversion Merger shall have been initiatedissued, announced or threatened;proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(db) all representations and warranties of At the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correctClosing Date, with the same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;received:
(f1) the Offered Shares shall have been conditionally approved for listing on the CSEThe opinion, and the Agent shall have received evidence dated as of the same Closing Date, of Xxxxx Xxxxxx, in form and substance satisfactory to the Agent, acting reasonably;
(g) Agent and counsel for the Issuer shall have delivered or caused to be delivered Agent to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the accuracy of any laws of the representations or warranties contained herein; State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is validly existing as a federally chartered stock savings bank under the fulfillment laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OCC and FRB; all of the issued and outstanding capital stock of the Bank is duly authorized and validly issued, fully paid and nonassessable and is owned of record and beneficially by the Holding Company free and clear of any of the conditions contained herein; mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the accuracy Holding Company and completeness of any information contained the Bank, as described in the Prospectus;
(h) , are permitted by federal law. To such counsel’s knowledge, each of the ATM Decisions shall remain Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, without amendment adverse and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) At the Closing and prior to the Issuer Merger, the authorized capital stock of Fullerton consists of one thousand (1,000) shares of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company, to such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of Fullerton’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion Merger, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date except as described in the Prospectus; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Fairmount Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Fairmount Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the Agent; andrights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(iix) there shall not The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of Fullerton in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion Merger, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion Merger imposed by the OCC, the FRB, the Commission, or any other governmental agency, if any, were complied with by the Fairmount Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Merger Application have occurred been approved by the OCC, the Holding Company Application has been approved by the FRB, and the Proxy Statement has been authorized for use by the OCC, and subject to the satisfaction of any eventconditions set forth in such approvals, matter no further approval, registration, authorization, consent or circumstance other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion Merger.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of Fullerton has been authorized by the OCC and the FRB, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that would permit purpose have been instituted or, to such counsel’s knowledge, threatened by the Agent to terminate this Agreement pursuant to Section 13.1Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “The Conversion – Material Income Tax Consequences.” The information in the Prospectus under the captions
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall not contain any misrepresentation and shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s 's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Entity shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the IssuerCompany, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer Company contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified datedate or is updated, and qualified or clarified as permitted by Section 4.7 or Section 9.3, unless the Issuer Agent has notified the Company that it wishes to suspend the sale of Placement Shares or terminate this Agreement in response to any such update, qualification or clarification;
(e) the Company shall have complied in all material respects with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Shares shall have been conditionally approved for listing on the CSETSXV, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably, and the Common Shares shall not have been suspended on the TSXV;
(gh) the Issuer Company shall have delivered or caused to be delivered to the Agent and the Agent’s 's counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
Prospectus and the documents incorporated (hor deemed to be incorporated) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agentby reference therein; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement (Vizsla Silver Corp.)
Conditions to Agent’s Obligations. 11.1 The obligations obligation of an Agent, as agent of the Company, at any time (each a “Solicitation Time”), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent’s discretion, to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditionsconditions that:
(a) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (i) on the Commencement Date; (ii) each time that the Registration Statement or the Prospectus Supplement shall be amended or supplemented, (iii) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (iv) at each Applicable Time, (v) at each Settlement Date, and (vi) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be,
(b) prior to such Solicitation Time or such Time of Delivery, as the case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed,
(c) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the such Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;,
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except to orders of the extent that any such representation or warranty is limited to a specified date, OPUC and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on WUTC which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon permit the issuance and sale of the Placement Shares as herein contemplatedSecurities in accordance with the terms and conditions of this Agreement,
(e) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; (ii) Company contemplated by, the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effectCommission, without amendment adverse to the Issuer or the Agent; and
(if) there shall not have occurred occurred: (i) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any eventsecurities of the Company on the New York Stock Exchange or any relevant exchange or a material disruption in securities settlement or clearance services in the United States; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) any material adverse change in the financial markets in the United States, matter any outbreak of hostilities or circumstance that would permit escalation thereof or other calamity or crisis or material adverse change in national financial or economic conditions, in each case, the effect of which, in the reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (iv) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Xxxxx’x Investors Service or Standard & Poor’s Rating Services. In addition to the foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent’s discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations obligation of an --------------------------------- Agent, as agent of the Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent's discretion, to the completion conditions that: (i) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Com- mencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Agent Company under the Act or Exchange Act, (D) at the date of a due diligence review satisfactory each acceptance by the Company of an offer to the Agent in its sole and reasonable judgmentpurchase Securities procured by such Agent, as agent, and to the continuing satisfaction (or waiver each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, in its sole as principal, (E) at each Settlement Date, and unfettered discretion(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the following additional conditions:
case may be, (aii) prior to such Solicita- tion Time or such Time of Delivery, as the Prospectus Supplement case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed, (iii) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the such Agent, acting reasonably, objects;
(civ) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except orders of the Public Utility Commission of Oregon and the Washington Utilities and Transportation Commission which are acceptable to the extent that any such representation or warranty is limited to a specified date, Agents and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon permit the issuance and sale of the Placement Shares as herein contemplatedSecurities substantially in accordance with the terms and conditions of this Agreement, (v) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; Company contemplated by, the Commission, and (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ivi) there shall not have occurred occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an engagement by the United States in hostilities or any eventescalation of hostilities, matter the effect of which, in the judgment of such Agent, makes it impracticable or circumstance that would permit inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) any down- grading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Moody's Xxxxxxxrs Service or Standard & Poor's Corporation. In addition to the foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s 's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified date, and (or is updated as permitted by Section 4.7 or 9.3, unless the Agent has notified the Issuer that it wishes to suspend the sale of Placement Shares or terminate this Agreement in response to any such update);
(e) the Issuer shall have complied in all material respects with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 98.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Shares Issuer shall have been conditionally approved for listing on duly notified the CSE, CSE of the issuance of the Placement Shares and the Agent CSE shall not have received evidence of objected thereto or denied the same in form and substance satisfactory to the Agent, acting reasonablylisting thereof;
(gh) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s 's counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(hi) the ATM Decisions Decision shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ij) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations obligation of an --------------------------------- Agent, as agent of the Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent's discretion, to the completion conditions that: (i) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Agent Company under the Act or Exchange Act, (D) at the date of a due diligence review satisfactory each acceptance by the Company of an offer to the Agent in its sole and reasonable judgmentpurchase Securities procured by such Agent, as agent, and to the continuing satisfaction (or waiver each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, in its sole as principal, (E) at each Settlement Date, and unfettered discretion(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the following additional conditions:
case may be, (aii) prior to such Solicitation Time or such Time of Delivery, as the Prospectus Supplement case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed, (iii) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the such Agent, acting reasonably, objects;
(civ) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except orders of the Public Utility Commission of Oregon and the Washington Utilities and Transportation Commission which are acceptable to the extent that any such representation or warranty is limited to a specified date, Agents and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon permit the issuance and sale of the Placement Shares as herein contemplatedSecurities substantially in accordance with the terms and conditions of this Agreement, (v) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; Company contemplated by, the Commission, and (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ivi) there shall not have occurred occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an engagement by the United States in hostilities or any eventescalation of hostilities, matter the effect of which, in the judgment of such Agent, makes it impracticable or circumstance that would permit inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) any downgrading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Moody's Investors Service or Standard & Poor's Corporatxxx. Xn addition to the foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSETSX, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, Agent (acting reasonably);
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; and or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ih) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent Agents hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent Agents of a ongoing due diligence review reviews satisfactory to the Agent Agents in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the AgentAgents, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent Agents and the Agent’s Agents’ counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the AgentAgents, acting reasonably, objectsobject;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, orCorporation,
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer Corporation contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified date, and date (or is updated as permitted by Section 4.7 or 9.3);
(e) the Issuer Corporation shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent Agents shall have received all documents required to be delivered or furnished to the Agent Agents pursuant to Section 99.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Placement Shares shall have been conditionally approved for listing on the CSETSX, and subject only to fulfilling customary conditions with the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;TSX; and
(gh) the Issuer Corporation shall have delivered or caused to be delivered to the Agent and the Agent’s Agents’ counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement (Charlotte's Web Holdings, Inc.)
Conditions to Agent’s Obligations. 11.1 The obligations obligation of an Agent, as agent of the Company, at any time (each a “Solicitation Time”), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent’s discretion, to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditionsconditions that:
(a) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (i) on the Commencement Date; (ii) each time that the Registration Statement or the Prospectus Supplement shall be amended or supplemented, (iii) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (iv) at each Applicable Time, (v) at each Settlement Date, and (vi) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be,
(b) prior to such Solicitation Time or such Time of Delivery, as the case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed,
(c) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the such Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;,
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence an order of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon OPUC which permits the issuance and sale of the Placement Shares as herein contemplatedSecurities in accordance with the terms and conditions of this Agreement,
(e) no stop order suspending the effectiveness of the Registration Statement and no notice pursuant to Rule 401(g)(2) of the Act objecting to use of the automatic shelf registration form shall have been issued and in effect and no proceedings for those purposes shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; (ii) Company contemplated by, the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;Commission,
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(if) there shall not have occurred occurred: (i) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any eventsecurities of the Company on the New York Stock Exchange or any relevant exchange or a material disruption in securities settlement or clearance services in the United States; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) any material adverse change in the financial markets in the United States, matter any outbreak of hostilities or circumstance that would permit escalation thereof or other calamity or crisis or material adverse change in national financial or economic conditions, in each case, the effect of which, in the reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (iv) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Xxxxx’x Investors Service or Standard & Poor’s Rating Services, and
(g) the Company shall have filed a statement with the WUTC establishing compliance with the applicable Washington statutory provisions with respect to the issuance and sale of such Securities. In addition to the foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent’s discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent under this Agreement have been undertaken in reliance on, and shall be subject to, the due performance by the Company of its obligations and agreements to be performed hereunder and to the accuracy of and compliance with the representations, warranties, covenants and agreements of the Company contained herein, in each case on and as of the date of delivery of this Agreement and on and as of each date on which Bonds are to be offered and sold pursuant to this Agreement. The obligations of the Agent hereunder with respect to any sale each date on which Bonds are to be offered and sold pursuant to this Agreement are also subject, in the discretion of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of to the following additional further conditions:
(a) The Indenture, the Prospectus Supplement Loan Agreement, the Tender Agreement and the Continuing Disclosure Agreement shall be in full force and effect and shall not have been filed with amended, modified or supplemented in any way which would materially and adversely affect the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall Bonds, except as may have been complied with agreed to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated in writing by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect such additional resolutions, agreements, certificates (including such certificates as if then made, except may be required by regulations of the Internal Revenue Service in order to establish the extent that any such representation or warranty is limited tax-exempt character of interest on the Bonds) and opinions as shall be necessary to effect a specified date, and secondary remarketing of the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) Bonds in the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to manner contemplated by this Agreement;
(f) , which resolutions, agreements, certificates and opinions, at the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence request of the same Agent, shall be satisfactory in form and substance satisfactory to Pillsbury Winthrop LLP., bond counsel to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplatedIssuer, or in order Pillsbury Winthrop LLP, counsel to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ib) there There shall not have been no material adverse change in the properties, business, condition (financial or other) or results of operations of the Company since the date of the 2002 Official Statement or any supplement thereto relating to the Bonds being offered on such date, and no Event of Default under Section 10.01 (a)(i), (ii), (iii), (iv), (v), (vi) or (vii) of the Indenture, shall have occurred any eventand be continuing and no event shall have occurred and be continuing which, matter with the passage of time or circumstance that giving of notice or both, would permit constitute such an Event of Default and the Agent to terminate this Agreement pursuant to Section 13.1shall receive such certificates, accountants' letters and opinions of counsel as it shall reasonably request in connection with the remarketing of the Bonds.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations obligation of an Agent, as agent of the Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the obligation of an Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject subject, in such Agent's discretion, to the completion conditions that: (i) all of the representations and warranties of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Agent Company under the Act or Exchange Act, (D) at the date of a due diligence review satisfactory each acceptance by the Company of an offer to the Agent in its sole and reasonable judgmentpurchase Securities procured by such Agent, as agent, and to the continuing satisfaction (or waiver each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, in its sole as principal, (E) at each Settlement Date, and unfettered discretion(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the following additional conditions:
case may be, (aii) prior to such Solicitation Time or such Time of Delivery, as the Prospectus Supplement case may be, the Company shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(bperformed all of its obligations hereunder theretofore to be performed, (iii) hereof and all requests for additional information on the part of the Qualifying Authorities Commission shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the such Agent, acting reasonably, objects;
(civ) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto there shall be true and correct, with the same in full force and effect as if then made, except to orders of the extent that any such representation or warranty is limited to a specified date, OPUC and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on WUTC which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon permit the issuance and sale of the Placement Shares as herein contemplatedSecurities in accordance with the terms and conditions of this Agreement, (v) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending before, or in order to evidence or confirm: (i) the accuracy of any knowledge of the representations or warranties contained herein; Company contemplated by, the Commission, and (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(ivi) there shall not have occurred occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any eventsecurities of the Company on the New York Stock Exchange or any relevant exchange or a material disruption in securities settlement or clearance services in the United States; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) any material adverse change in the financial markets in the United States, matter any outbreak of hostilities or circumstance that would permit escalation thereof or other calamity or crisis or material adverse change in national financial or economic conditions, in each case, the effect of which, in the reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been given of any intended or potential downgrading, of the Securities by either Moody's Investors Service or Standard & Poor's Rating Group. In additiox xx xxe foregoing, the obligation of an Agent to terminate this Agreement purchase Securities as principal, pursuant to Section 13.1a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, to the further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Issuer shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(e) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(f) the Offered Shares shall have been conditionally approved for listing on the CSE, and the Agent shall have received evidence of the same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(h) the ATM Decisions French Translation Exemption shall remain in full force and effect, without amendment adverse to the Issuer or the Agent; and
(i) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder with respect to any sale of Placement Shares (other than the obligations in Section 2.3) shall be subject to the completion by the Agent of a ongoing due diligence review reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s 's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the IssuerCorporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Issuer Corporation contained herein and in any certificates delivered pursuant hereto shall be true and correct, with the same force and effect as if then made, except to the extent that any such representation or and warranty is limited to a specified date, and (or is updated as permitted by Section 4.7 or 9.3);
(e) the Issuer Corporation shall have complied with all agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(ef) the Agent shall have received all documents required to be delivered or furnished to the Agent pursuant to Section 98.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(fg) the Offered Shares Corporation shall have been conditionally approved for listing on duly notified the CSE, CSE of the issuance of the Placement Shares and the Agent CSE shall not have received evidence of objected thereto or denied the same in form and substance satisfactory to the Agent, acting reasonablylisting thereof;
(gh) the Issuer Corporation shall have delivered or caused to be delivered to the Agent and the Agent’s 's counsel such other certificates or other documents as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the representations or warranties contained herein; (ii) the fulfillment of any of the conditions contained herein; or (iii) the accuracy and completeness of any information contained in the Prospectus;
(hi) the ATM Decisions Decision shall remain in full force and effect, without amendment adverse to the Issuer Corporation or the Agent; and
(ij) there shall not have occurred any event, matter or circumstance that would permit the Agent to terminate this Agreement pursuant to Section 13.1.
Appears in 1 contract
Samples: Equity Distribution Agreement
