CONDITIONS TO THE. Recapitalization Transaction (a) The Recapitalization Transaction shall be subject to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the mutual benefit of the Concordia Parties, on the one hand, and the Consenting Debtholders, on the other hand, and may be waived in whole or in part jointly by the Company on behalf of the Concordia Parties and the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by any Concordia Party or a Consenting Debtholder, as the case may be, if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of the Party seeking enforcement): (i) the CBCA Plan shall have been approved by (A) the Court; and (B) the requisite majority of affected creditors and, if applicable, shareholders, as and to the extent required by the Court and the CBCA; (ii) the Final Order (A) shall have been entered by the Court and (B) shall have become a final order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Company or the Majority Initial Consenting Debtholders, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired; (iii) the CBCA Plan and all Definitive Documents shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders; provided that: (A) the Subscription Agreement shall be in form and substance acceptable to the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the Majority Consenting Private Placement Parties, and (C) the New Senior Secured Debt shall be in form and substance acceptable to the Company, acting reasonably, the Majority Initial Consenting Secured Debtholders and the Majority Consenting Private Placement Parties; (iv) all disclosure documents (including the Information Circular), solicitation forms with respect to the CBCA Proceedings and the Chapter 11 Process and press releases in respect of the Recapitalization Transaction shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders, each acting reasonably; provided that, nothing herein shall prevent a Party from making public disclosure in respect of the Recapitalization Transaction to the extent required by applicable Law; (v) all required stakeholder, regulatory, Court approvals, consents, waivers and filings required to be made by the Concordia Parties shall have been obtained or made, as applicable, on terms satisfactory to the Company and the Majority Initial Consenting Debtholders, and copies of any and all (b) The obligation of the Concordia Parties to complete the Recapitalization Transaction and the other transactions contemplated hereby are subject to Section 11 hereof and to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Concordia Parties and may be waived, in whole or in part, by the Company on behalf of the Concordia Parties (provided that such conditions shall not be enforceable by the Concordia Parties if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of any Concordia Party): (i) the Consenting Debtholders shall have complied in all material respects with each covenant and obligation in this Support Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Consenting Debtholders set forth in this Support Agreement shall be true and correct in all material respects(except for those representations and warranties which expressly include a materiality standard, which shall be true and correct in all (c) The obligations of the Consenting Debtholders to complete the Recapitalization Transaction and the other transactions contemplated hereby and the consummation of the Recapitalization Transaction are subject to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Consenting Debtholders and may be waived, in whole or in part, by the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by the Consenting Debtholders if any failure to satisfy such conditions results solely from an action, error or omission by or within the control of the Consenting Debtholder seeking enforcement): (i) the Company shall have (A) achieved the Milestones on or before the applicable dates set forth herein, and (B) complied in all material respects with each covenant and obligation in this Support Agreement and the Subscription Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Concordia Parties set forth in this Support Agreement shall be true and correct in all material respects as of the Effective Date with the same force and effect as if made at and as of such date, except (A) that representations and warranties that are given as of a specified date shall be true and correct in all material respects as of such date and (B) as such representations and warranties may be affected by the occurrence of events or transactions contemplated and permitted by this Support Agreement; (iii) the Final Order, the CBCA Plan, the other Definitive Documents and all orders made and judgments rendered by any competent court of law, and all rulings and decrees of any competent regulatory body, agent or official in relation to the CBCA shall be in form and substance satisfactory to the Majority Initial Consenting Debtholders; provided that: (A) the Subscription Agreement shall be in form and substance acceptable to the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the Majority
Appears in 1 contract
CONDITIONS TO THE. Recapitalization Transaction Funding on each Subsequent Borrowing Date
(a) The Recapitalization Transaction ThermaClime shall be subject deliver to the satisfaction Payment Agent a certificate of each Loan Party signed by a Responsible Officer of that Loan Party and dated as of the following conditions prior to Subsequent Borrowing Date, (a) certifying and attaching the resolutions adopted by that Loan Party approving or at the Effective Time, each of which is for the mutual benefit of the Concordia Parties, on the one hand, and the Consenting Debtholders, on the other hand, and may be waived in whole or in part jointly by the Company on behalf of the Concordia Parties and the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by any Concordia Party or a Consenting Debtholder, as the case may be, if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of the Party seeking enforcement): (i) the CBCA Plan shall have been approved by (A) the Court; and (B) the requisite majority of affected creditors and, if applicable, shareholders, as and consenting to the extent required by the Court and the CBCA; (ii) the Final Order (A) shall have been entered by the Court and (B) shall have become a final orderFacility Increase, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Company or the Majority Initial Consenting Debtholders, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired; (iii) the CBCA Plan and all Definitive Documents shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders; provided that: (A) the Subscription Agreement shall be in form and substance acceptable to the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the Majority Consenting Private Placement Parties, and (C) the New Senior Secured Debt shall be in form and substance acceptable to the Company, acting reasonably, the Majority Initial Consenting Secured Debtholders and the Majority Consenting Private Placement Parties; (iv) all disclosure documents (including the Information Circular), solicitation forms with respect to the CBCA Proceedings and the Chapter 11 Process and press releases in respect of the Recapitalization Transaction shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders, each acting reasonably; provided that, nothing herein shall prevent a Party from making public disclosure in respect of the Recapitalization Transaction to the extent required by applicable Law; (v) all required stakeholder, regulatory, Court approvals, consents, waivers and filings required to be made by the Concordia Parties shall have been obtained or made, as applicable, on terms satisfactory to the Company and the Majority Initial Consenting Debtholders, and copies of any and all
(b) The obligation in the case of the Concordia Parties to complete the Recapitalization Transaction and the other transactions contemplated hereby are subject to Section 11 hereof and Borrowers, certifying that, after giving effect to the satisfaction Facility Increase and as of the following conditions prior to or at the Effective TimeSubsequent Borrowing Date, each of which is for the benefit of the Concordia Parties and may be waived, in whole or in part, by the Company on behalf of the Concordia Parties (provided that such conditions shall not be enforceable by the Concordia Parties if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of any Concordia Party): (i) the Consenting Debtholders shall have complied in all material respects with each covenant and obligation in this Support Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Consenting Debtholders set forth contained in this Support Agreement shall be Article V or any other Loan Documents, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects(except for respects, except to the extent that those representations and warranties which expressly include a materiality standard, which shall be true and correct in all
(c) The obligations of the Consenting Debtholders relate to complete the Recapitalization Transaction and the other transactions contemplated hereby and the consummation of the Recapitalization Transaction are subject to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Consenting Debtholders and may be waivedan earlier date, in whole or in part, by the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by the Consenting Debtholders if any failure to satisfy such conditions results solely from an action, error or omission by or within the control of the Consenting Debtholder seeking enforcement): (i) the Company shall have (A) achieved the Milestones on or before the applicable dates set forth herein, and (B) complied in all material respects with each covenant and obligation in this Support Agreement and the Subscription Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Concordia Parties set forth in this Support Agreement which case they shall be true and correct in all material respects as of the Effective Date with the same force and effect as if made at and as of such that earlier date, except (AX) that representations no Default or Event of Default has occurred and warranties that are given as is continuing under the Agreement or under any of a specified date shall be true the other Loan Documents, or (Y) exists, or would result from the making of the Facility Increase or from the application of the proceeds thereof, and correct in all material respects as of such date and (B) as such representations and warranties may be affected by the occurrence of events or transactions contemplated and permitted by this Support Agreement; (iii) there has been no event or circumstance since the Final Orderdate of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the CBCA Planaggregate, a Material Adverse Effect;
(b) no optional prepayment of the other Definitive Documents Term Loans pursuant to Section 2.02(b) shall have occurred;
(c) the Borrowers shall have paid all fees then due and all orders made payable and judgments rendered reasonable out-of-pocket expenses incurred by any competent court the Agents and their respective Affiliates (including the reasonable fees, charges and disbursements of lawcounsel for each Agent), in connection with the Facility Increase provided for herein and the preparation, negotiation, execution, delivery, and all rulings and decrees administration of any competent regulatory body, agent or official in relation to the CBCA shall be in form and substance satisfactory to the Majority Initial Consenting Debtholders; provided that: Joining Lender Agreement;
(Ad) the Subscription Agreement shall be Payment Agent’s receipt of endorsements to each of the Policies that are in form and substance acceptable to the Company Payment Agent, in its sole discretion, that provide for the increase in the coverage by the sum of all Nominal Facility Increase Amounts related to the Facility Increase Amounts to be advanced on that Subsequent Borrowing Date, and that cover such other matters as reasonably requested by the Majority Consenting Private Placement PartiesPayment Agent, and such other agreements or further assurances as the Payment Agent, the title company, or any Governmental Authority may require in connection therewith;
(e) the Payment Agent shall submit to the Borrowers the proposed revised Schedule 2.03 to be provided pursuant to Section 2.01(h) for their approval and consent thereto; and
(f) the Payment Agent’s receipt of a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(viii) and a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(ix), each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the MajorityPayment Agent.
Appears in 1 contract
CONDITIONS TO THE. Recapitalization Transaction Second Closing in Favour of the Investor
(a) The Recapitalization Transaction shall be subject to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the mutual benefit of the Concordia Parties, on the one hand, and the Consenting Debtholders, on the other hand, and may be waived in whole or in part jointly by the Company on behalf of the Concordia Parties and the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by any Concordia Party or a Consenting Debtholder, as the case may be, if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of the Party seeking enforcement): (i) the CBCA Plan shall have been approved by (A) the Court; performed and (B) the requisite majority of affected creditors and, if applicable, shareholders, as and to the extent required by the Court and the CBCA; (ii) the Final Order (A) shall have been entered by the Court and (B) shall have become a final order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Company or the Majority Initial Consenting Debtholders, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired; (iii) the CBCA Plan and all Definitive Documents shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders; provided that: (A) the Subscription Agreement shall be in form and substance acceptable to the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the Majority Consenting Private Placement Parties, and (C) the New Senior Secured Debt shall be in form and substance acceptable to the Company, acting reasonably, the Majority Initial Consenting Secured Debtholders and the Majority Consenting Private Placement Parties; (iv) all disclosure documents (including the Information Circular), solicitation forms with respect to the CBCA Proceedings and the Chapter 11 Process and press releases in respect of the Recapitalization Transaction shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders, each acting reasonably; provided that, nothing herein shall prevent a Party from making public disclosure in respect of the Recapitalization Transaction to the extent required by applicable Law; (v) all required stakeholder, regulatory, Court approvals, consents, waivers and filings required to be made by the Concordia Parties shall have been obtained or made, as applicable, on terms satisfactory to the Company and the Majority Initial Consenting Debtholders, and copies of any and all
(b) The obligation of the Concordia Parties to complete the Recapitalization Transaction and the other transactions contemplated hereby are subject to Section 11 hereof and to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Concordia Parties and may be waived, in whole or in part, by the Company on behalf of the Concordia Parties (provided that such conditions shall not be enforceable by the Concordia Parties if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of any Concordia Party): (i) the Consenting Debtholders shall have complied in all material respects with each covenant all covenants and obligation in agreements required by this Support Agreement that is to be performed or complied with by them it on or before prior to the Effective Second Closing Date; ;
(iib) the all representations and warranties of the Consenting Debtholders set forth Company contained in this Support Agreement shall be true and correct in all material respects(except for those representations on the date hereof and warranties which expressly include a materiality standard, which shall be true and correct in all
(c) The obligations of the Consenting Debtholders to complete the Recapitalization Transaction and the other transactions contemplated hereby and the consummation of the Recapitalization Transaction are subject to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Consenting Debtholders and may be waived, in whole or in part, by the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by the Consenting Debtholders if any failure to satisfy such conditions results solely from an action, error or omission by or within the control of the Consenting Debtholder seeking enforcement): (i) the Company shall have (A) achieved the Milestones on or before the applicable dates set forth herein, and (B) complied in all material respects with each covenant and obligation in this Support Agreement and the Subscription Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Concordia Parties set forth in this Support Agreement shall be true and correct in all material respects on the Second Closing Date as if made on and as of the Effective Second Closing Date with the same force and effect as if made at and as of such date, (except (A) that those representations and warranties that which are given as of a specified date qualified by materiality which shall be true and correct in all respects, and except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such date earlier date);
(c) there shall have been no Material Adverse Effect since the First Closing Date;
(d) by no later than November 30, 2022, all approvals, consents and authorizations necessary for the consummation of the subscription for the Second Subscription Shares shall have been obtained, including the conditional acceptance of the TSXV (Bwhich shall be subject only to customary conditions) as such representations and warranties may be affected by the occurrence of events or transactions contemplated and permitted by this Support Agreement; (iii) the Final Order, the CBCA Plan, the other Definitive Documents and all orders made and judgments rendered by any competent court of lawShareholder Approval, and all rulings and decrees of any competent regulatory body, agent or official in relation to the CBCA shall be in form full force and substance satisfactory to the Majority Initial Consenting Debtholders; provided that: effect, and shall not have been adversely amended, modified, revoked or terminated;
(Ae) the Subscription Company shall have made, or caused to be made, all of the deliveries set out in Section 7.4(c);
(f) no preliminary or permanent injunction or other Order issued by a Governmental Authority, and no statute, rule, regulation or executive order promulgated or enacted by a Governmental Authority, which restrains, enjoins, prohibits or otherwise makes illegal the consummation of the transactions contemplated by this Agreement shall be in form and substance acceptable effect;
(g) no action or proceeding, at law or in equity, shall be pending or threatened by any Person (including any Governmental Authority) to restrain, enjoin or prohibit the Company and consummation of the Majority Consenting Private Placement Parties, each acting reasonably, transactions contemplated by this Agreement; and
(Bh) no Order having the Governance Agreement effect of suspending the issuance or ceasing the trading of any of the Subscription Shares issued or made by any Governmental Authority (including any Securities Regulator or the TSXV) shall be in form and substance acceptable to the Company, acting reasonably, and the Majorityeffect.
Appears in 1 contract
Samples: Subscription Agreement
CONDITIONS TO THE. Recapitalization Transaction effectiveness of this Agreement
(1) the Agent shall have received two originally executed copies of this Agreement;
(2) the Agent shall have received two originally executed copies of a certificate of an officer of the Borrower dated as of the date hereof as to:
(a) The Recapitalization Transaction shall be subject to the satisfaction copies of the following conditions prior to certificate or at articles of incorporation, amalgamation, continuance (or similar document),
(b) copies of bylaws or other constitutional documents,
(c) corporate resolutions (or the Effective Time, each equivalent) approving the transactions contemplated by this Agreement and authorizing the execution and delivery of which is this Agreement,
(d) the incumbency and signature of the officers or other authorized persons executing this Agreement as signatories for the mutual benefit Borrower, and
(e) a certificate of good standing or continued existence (or the Concordia Parties, on equivalent thereof) from the one hand, and jurisdiction of its formation or incorporation.
(3) the Consenting Debtholders, on Agent shall have received an opinion from counsel the other hand, and may be waived in whole or in part jointly by the Company on behalf of the Concordia Parties and the Majority Initial Consenting Debtholders (provided that Borrower covering such conditions shall not be enforceable by any Concordia Party or a Consenting Debtholder, matters as the case may be, if any failure to satisfy such conditions results primarily from an action, error or omission reasonably required by or within the control of the Party seeking enforcement): (i) the CBCA Plan shall have been approved by (A) the Court; and (B) the requisite majority of affected creditors and, if applicable, shareholders, as and to the extent required by the Court and the CBCA; (ii) the Final Order (A) shall have been entered by the Court and (B) shall have become a final order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Company or the Majority Initial Consenting Debtholders, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired; (iii) the CBCA Plan and all Definitive Documents shall be otherwise reasonably satisfactory in form and substance acceptable to the Company Agent and the Majority Initial Consenting Debtholders; provided that: Lenders;
(A4) the Subscription Agreement Agent shall be in form have received a confirmation of guarantee and substance acceptable security from all Credit Parties;
(5) pursuant to Section 2.14 of the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the Majority Consenting Private Placement Parties, and (C) the New Senior Secured Debt shall be in form and substance acceptable to the Company, acting reasonablyCredit Agreement, the Majority Initial Consenting Secured Debtholders Agent and the Majority Consenting Private Placement Parties; (iv) all disclosure documents (including the Information Circular), solicitation forms with respect to the CBCA Proceedings and the Chapter 11 Process and press releases in respect Lenders shall have received payment of the Recapitalization Transaction shall be in form Revolving Credit Facility Fee, if any, accrued and substance acceptable to the Company and the Majority Initial Consenting Debtholders, each acting reasonably; provided that, nothing herein shall prevent a Party from making public disclosure in respect of the Recapitalization Transaction to the extent required by applicable Law; (v) all required stakeholder, regulatory, Court approvals, consents, waivers and filings required to be made by the Concordia Parties shall have been obtained or made, as applicable, on terms satisfactory to the Company and the Majority Initial Consenting Debtholders, and copies of any and all
(b) The obligation of the Concordia Parties to complete the Recapitalization Transaction and the other transactions contemplated hereby are subject to Section 11 hereof and to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Concordia Parties and may be waived, in whole or in part, by the Company on behalf of the Concordia Parties (provided that such conditions shall not be enforceable by the Concordia Parties if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of any Concordia Party): (i) the Consenting Debtholders shall have complied in all material respects with each covenant and obligation in this Support Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Consenting Debtholders set forth in this Support Agreement shall be true and correct in all material respects(except for those representations and warranties which expressly include a materiality standard, which shall be true and correct in all
(c) The obligations of the Consenting Debtholders to complete the Recapitalization Transaction and the other transactions contemplated hereby and the consummation of the Recapitalization Transaction are subject to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Consenting Debtholders and may be waived, in whole or in part, by the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by the Consenting Debtholders if any failure to satisfy such conditions results solely from an action, error or omission by or within the control of the Consenting Debtholder seeking enforcement): (i) the Company shall have (A) achieved the Milestones on or before the applicable dates set forth herein, and (B) complied in all material respects with each covenant and obligation in this Support Agreement and the Subscription Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Concordia Parties set forth in this Support Agreement shall be true and correct in all material respects unpaid as of the Effective Date with the same force and effect as if made at and as date of such date, except this Agreement;
(A) that representations and warranties that are given as of a specified date shall be true and correct in all material respects as of such date and (B) as such representations and warranties may be affected by the occurrence of events or transactions contemplated and permitted by this Support Agreement; (iii6) the Final Order, Borrower shall have paid all fees of the CBCA Plan, Agent and the other Definitive Documents and all orders made and judgments rendered by any competent court of law, and all rulings and decrees of any competent regulatory body, agent or official Lenders stipulated in relation to the CBCA shall be in form and substance satisfactory to the Majority Initial Consenting Debtholders; provided that: amendment fee letter;
(A7) the Subscription Agreement Borrower shall be in form have paid all other reasonable fees and substance acceptable to expenses of the Company Agent and the Majority Consenting Private Placement PartiesLenders incurred in connection with any of this Agreement (including, each acting reasonably, but not limited to all reasonable fees and expenses of the Agent’s counsel);
(B8) the Borrower shall have delivered such other documents that the Agent may reasonably request; and
(9) the Governance Agreement no Default or Event of Default shall have occurred and be in form and substance acceptable to the Company, acting reasonably, and the Majoritythen continuing.
Appears in 1 contract
CONDITIONS TO THE. Recapitalization Transaction OBLIGATIONS OF THE PLACEMENT AGENTS AND THE PURCHASERS, AND THE SALE OF THE STOCK. The respective obligations of each Placement Agent and the Purchasers, and the closing of the sale of the Stock hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company and its Subsidiary contained herein, to the accuracy of the statements of the Company and its Subsidiary made in any certificates pursuant to the provisions hereof, to the performance by the Company and of its Subsidiary of their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Recapitalization Transaction No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to be subject included in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement or otherwise) shall have been complied with to the reasonable satisfaction of the following conditions Representative. Any filings required to be made by the Company in accordance with Section 4(a) shall have been timely filed with the Commission.
(b) None of the Placement Agents shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or at the Effective TimeProspectus Supplement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Placement Agents, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each of which is for this Agreement, the mutual benefit Stock, the Registration Statement, the Base Prospectus, the Time of the Concordia PartiesSale Prospectus, on the one handif any, and the Consenting Debtholders, on Prospectus Supplement and all other legal matters relating to this Agreement and the other handtransactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Placement Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) The Placement Agents shall have received from each of (i) DLA Piper Rudnick Gray Cary US LLP, corporate counsel for the Companx (xx) Xxxx Xxxx Xxxx Xennison and Howard, special counsel for the Compxxx (xxx) DLA Piper Xxxnick Xxxx Xary US LLP, intellectual property counsel fox xxx Xxxxxxx, xxxx xxxnsel's written opinion, addressed to the Placement Agents and the Purchasers and dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agents as set forth in Exhibits C-1, C-2 and C-3 attached hereto, respectively. DLA Piper Rudnick Gray Cary US LLP shall also have furnished to the Xxxxxxxxx Xxxnxx x xxxxten statement, addressed to the Placement Agents and the Purchasers and dated the Closing Date, in form and substance satisfactory to the Representative, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, (y) based on such counsel's examination of the Registration Statement and such counsel's investigations made in connection with the preparation of the Registration Statement and conferences with certain officers and employees of and with auditors for and counsel to the Company, such counsel has no reason to believe that (I) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be waived stated therein or necessary in whole order to make the statements therein not misleading, or that the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in part jointly order to make the statements therein, in light of the circumstances under which they were made, not misleading or (II) any document incorporated by reference in the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement or any further amendment or supplement to any such incorporated document made by the Company on behalf of prior to the Concordia Parties and Closing Date, when they became effective or were filed with the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by any Concordia Party or a Consenting DebtholderCommission, as the case may be, if contained, in the case of a registration statement which became effective under the Securities Act, any failure untrue statement of a material fact or omitted to satisfy such conditions results primarily from an actionstate any material fact required to be stated therein or necessary in order to make the statements therein not misleading, error or, in the case of other documents which were filed under the Exchange Act with the Commission, any untrue statement of a material fact or omission by or within omitted to state any material fact necessary in order to make the control statements therein, in light of the Party seeking enforcement): circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement.
(ie) the CBCA Plan The Placement Agents shall have been approved by (A) the Court; and (B) the requisite majority of affected creditors andreceived from Brown Raysman Millstein Felder & Steiner LLP, if applicablesuch opinion or opxxxxxs, shareholders, as and dated xxx Xxxxxxx Xxxx xxx xxxxxssed to the extent required by the Court and the CBCA; (ii) the Final Order (A) shall have been entered by the Court and (B) shall have become a final orderPlacement Agents, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Company or the Majority Initial Consenting Debtholders, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired; (iii) the CBCA Plan and all Definitive Documents shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders; provided that: (A) the Subscription Agreement shall be in form and substance acceptable to the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the Majority Consenting Private Placement Parties, and (C) the New Senior Secured Debt shall be in form and substance acceptable to the Company, acting reasonably, the Majority Initial Consenting Secured Debtholders and the Majority Consenting Private Placement Parties; (iv) all disclosure documents (including the Information Circular), solicitation forms with respect to the CBCA Proceedings issuance and sale of the Stock, the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, the Prospectus Supplement (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Chapter 11 Process Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Placement Agents and press releases in respect the Purchasers a certificate, dated as of the Recapitalization Transaction shall be in form Closing Date, executed by its Chief Executive Officer and substance acceptable to the Company and the Majority Initial Consenting Debtholders, each acting reasonably; provided that, nothing herein shall prevent a Party from making public disclosure in respect of the Recapitalization Transaction to the extent required by applicable Law; (v) all required stakeholder, regulatory, Court approvals, consents, waivers and filings required to be made by the Concordia Parties shall have been obtained or made, as applicable, on terms satisfactory to the Company and the Majority Initial Consenting Debtholders, and copies of any and all
(b) The obligation of the Concordia Parties to complete the Recapitalization Transaction and the other transactions contemplated hereby are subject to Section 11 hereof and to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Concordia Parties and may be waived, in whole or in part, by the Company its Chief Financial Officer on behalf of the Concordia Parties (provided Company stating that such conditions shall not be enforceable by the Concordia Parties if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of any Concordia Party): (i) such officers have carefully examined the Consenting Debtholders shall have complied Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement and, in all their opinion, the Registration Statement (including the Base Prospectus) as of its effective date, the Time of Sale Prospectus, if any, as of each such effective date and the Prospectus Supplement, as of each such effective date, did not include any untrue statement of a material respects with each covenant fact and obligation in this Support Agreement that is did not omit to state a material fact required to be performed by them on stated therein or before necessary to make the Effective Date; statements therein not misleading,
(ii) since the effective date of the Registration Statement no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement and that is not already included in such document by reason of materials incorporated by reference therein, (iii) to the best of their knowledge after reasonable investigation, as of the Closing Date, the representations and warranties of the Consenting Debtholders Company and its Subsidiary in this Agreement are true and correct and the Company and its Subsidiary have complied with all agreements and covenants contained in this Agreement and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) subsequent to the date of the most recent financial statements included or incorporated by reference in the Base Prospectus, there has been no change in the financial position or results of operation of the Company and its Subsidiary that could have a Material Adverse Effect, or any material change, or any material development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company taken as a whole, except as set forth in, or contemplated by, the Base Prospectus, and (v) the Registration Statement became effective on June 17, 2005, and to their knowledge, as of the Closing Date (I) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been commenced or are pending before or are contemplated by the Commission and (II) no action has been taken by any governmental agency, body or official, and no injunction, restraining order or order of any nature by any federal or state court has been issued, which would prevent the issuance of the Stock.
(g) On the Closing Date, the Placement Agents shall have received from Cacciamatta Accountancy Corp. a letter, addressed to the Placement Agents and dated the Closing Date confirming, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement as of a date not more than three Business Days prior to the Closing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the comfort letter delivered to the Placement Agents on December 12, 2005.
(i) Neither the Company nor its Subsidiary shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Base Prospectus or the Prospectus Supplement any loss or interference with its business from fire, explosion, flood, terrorist act 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 in this Support Agreement shall be true or contemplated by the Base Prospectus, and correct (ii) except for the exercise of stock options in all material respects(except for those representations and warranties which expressly include a materiality standard, which shall be true and correct in all
(c) The obligations the ordinary course of the Consenting Debtholders to complete Company's business, since such date there shall not have been any change in the Recapitalization Transaction and the other transactions contemplated hereby and the consummation capital stock or long-term debt of the Recapitalization Transaction are subject to Company or its Subsidiary or any change, or any development involving a prospective change, in or affecting the satisfaction business, general affairs, management, financial position, stockholders' equity, results of operations or prospects of the following conditions prior to Company or at its Subsidiary, otherwise than as set forth in or contemplated by the Effective TimeBase Prospectus, each the effect of which is for the benefit of the Consenting Debtholders and may be waivedwhich, in whole or any such case described in part, by the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by the Consenting Debtholders if any failure to satisfy such conditions results solely from an action, error or omission by or within the control of the Consenting Debtholder seeking enforcement): clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement.
(i) The Stock is registered under the Exchange Act and, as of the Closing Date, the Stock shall be listed and admitted and authorized for trading on the AMEX and satisfactory evidence of such actions shall have been provided to the Representative. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Stock under the Exchange Act or delisting or suspending from trading the Stock from AMEX, nor has the Company received any information suggesting that the Commission or the AMEX is contemplating terminating such registration or listing.
(j) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit B hereto from each executive officer and director of the Company. ---------
(Ak) achieved Subsequent to the Milestones execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the Nasdaq National Market or before the applicable dates set forth hereinAmerican Stock Exchange or in the over-the-counter market, and (B) complied or trading in all material respects with each covenant and obligation any securities of the Company on any exchange or in this Support Agreement and the Subscription Agreement that is to be performed over-the-counter market, shall have been suspended or minimum or maximum prices or maximum ranges for prices shall have been established on any such exchange or such market by them on the Commission, by such exchange or before the Effective Date; by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the representations and warranties of the Concordia Parties set forth in this Support Agreement shall be true and correct in all material respects as of the Effective Date with the same force and effect as if made at and as of such dateUnited States, except (A) that representations and warranties that are given as of a specified date shall be true and correct in all material respects as of such date and (B) as such representations and warranties may be affected by the occurrence of events or transactions contemplated and permitted by this Support Agreement; (iii) the Final OrderUnited States shall have become engaged in hostilities, or the subject of an act of terrorism, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred any other calamity or crisis or any change in general economic, political or financial conditions in the United States or elsewhere, if the effect of any such event in clause (iii) or (iv) makes it, in the sole judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated by the Base Prospectus and the Prospectus Supplement.
(l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the Offering, including as an exhibit thereto this Agreement and any other documents relating thereto which are required to be filed therewith.
(n) The Company shall have entered into Subscription Agreements with each of the Purchasers and such agreements shall be in full force and effect.
(o) Prior to the Closing Date, the CBCA Plan, the other Definitive Documents and all orders made and judgments rendered by any competent court of law, and all rulings and decrees of any competent regulatory body, agent or official in relation Company shall have furnished to the CBCA Placement Agents such further information, certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Majority Initial Consenting Debtholders; provided that: (A) the Subscription Agreement shall be in form and substance acceptable to the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (B) the Governance Agreement shall be in form and substance acceptable to the Company, acting reasonably, and the MajorityAgents.
Appears in 1 contract
Samples: Placement Agent Agreement (Halozyme Therapeutics Inc)
