Corporation’s Representations and Warranties. The Corporation represents and warrants to the Purchaser, and acknowledges that the Purchaser is relying thereon, that: (a) each of the Corporation and each Subsidiary of the Corporation that carries on a material portion of the business of the Corporation (on a consolidated basis) has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation and is conducting its business in all material respects in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on business and holds all material licences, registrations and qualifications in all jurisdictions in which it carries on business necessary to carry on its business as now conducted; (b) the Corporation is a reporting issuer under all the Provincial Securities Laws and is not included on a list of defaulting issuers maintained by the Ontario Securities Commission or in default of its disclosure obligations under Title III of the Securities Act (Quebec) and is a registrant under the United States Securities Exchange Act of 1934, as amended; (c) the authorized capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preferred shares, of which 65,711,367 Common Shares are issued and outstanding as of the date hereof, (without giving effect to the conversion of Debentures provided for hereunder) and no preferred shares are issued and outstanding; and 399,044,700 Common Shares will be outstanding immediately following the Closing (without giving effect to the conversion of Debentures provided for hereunder or by the Other Purchasers, but giving effect to the purchases of Common Shares being made by the Other Purchasers) and will be validly issued, fully paid and non-assessable; (d) no person has any agreement, option, right or privilege with or against the Corporation for the purchase, subscription or issuance of securities, issued or unissued of the Corporation, other than the holders of the Debentures, the holders of options or warrants, the Purchaser pursuant to the provisions hereof, the Other Purchasers, the holders of options under the Corporation's existing stock option plan, certain officers of the Corporation pursuant to the terms of their engagement; (e) the Corporation has good and sufficient power, authority and right to enter into this Agreement; this Agreement and the transactions to be completed by the Corporation hereunder have been duly authorized by all necessary corporate action on the part of the Corporation; and this Agreement has been duly executed and delivered by the Corporation and is a legally binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy and insolvency laws and other laws generally affecting the enforceability of creditors' rights and the availability of the equitable remedies of injunction and specific performance; (f) the execution and delivery of this Agreement and other documents contemplated hereunder, the fulfillment of the terms hereof and thereof by the Corporation and the issue, sale and delivery at the Time of Closing of the Purchased Shares do not and will not result in any breach of the articles, by-laws or resolutions of the Corporation or at the Time of Closing any agreement or instrument to which the Corporation or any of its Subsidiaries is a party or by which it is contractually bound except as waived by the ECF Lenders; (g) except as disclosed to the Purchaser on or before the date hereof, each of the Filed Securities Documents at the time of filing, (i) was true and correct in all material respects, (ii) contained no Misrepresentation and (iii) disclosed all Material Facts and Material Changes (actual, anticipated, contemplated or threatened, whether financial or otherwise) relating to the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries considered as a whole; (h) except as disclosed to the Purchaser on or before the date hereof, no Material Fact or Material Change has been omitted from the Filed Securities Documents that is required under the Provincial Securities Laws to be stated therein or is necessary to make the statements therein not misleading in the light of the circumstances in which they were made; (i) the Corporation has complied in all material respects with all Provincial Securities Laws and all U.S. federal and state securities laws and no confidential material change reports have been filed; (j) each of the consolidated financial statements of the Corporation included in the Filed Securities Documents filed after December 31, 2004 has been prepared in accordance with Canadian generally accepted accounting principles applied on a consistent basis during the periods involved (except as may otherwise be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by applicable laws) and fairly present in all material respects the consolidated financial position of the Corporation as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended (subject, in the case of unaudited interim financial statements, to normal year-end audit adjustments and provided that such unaudited interim financial statements may omit notes which are not required in the unaudited financial statements); (k) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there has been no Material Change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation since December 31, 2004; (l) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, each of the Corporation and its Subsidiaries is (i) not in violation of its articles or by-laws and (ii) is not in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it may be bound or to which any of its property or assets is subject, other than defaults that in the aggregate do not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Corporation and its Subsidiaries on a consolidated basis; (m) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there are no actions, suits, proceedings or inquiries pending or, to the knowledge of the Corporation, threatened in writing against or affecting the Corporation at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Corporation and its Subsidiaries on a consolidated basis; (n) the Common Shares are listed and posted for trading on the Toronto Stock Exchange and at the Time of Closing the Purchased Shares will be conditionally approved for listing on the Toronto Stock Exchange; and (o) no authorization, approval or consent of any court or governmental or regulatory authority is required to be obtained by the Corporation in connection with the sale and delivery of the Purchased Shares hereunder, except such as have been obtained.
Appears in 8 contracts
Samples: Share Purchase Agreement (Sr Telecom Inc), Share Purchase Agreement (Sr Telecom Inc), Share Purchase Agreement (Sr Telecom Inc)
Corporation’s Representations and Warranties. The Except as otherwise disclosed in the Disclosure Letter, the Corporation hereby represents and warrants as of the date hereof, and covenants to and with the Purchaser, Investor and acknowledges that the Purchaser Investor is relying thereonupon such representations, warranties and covenants (which representations, warranties and covenants shall survive the date hereof) that:
(a) each of the Corporation and each Subsidiary of the Corporation that carries on a material portion of the business of the Corporation (on a consolidated basis) has been Subsidiaries is duly incorporated organized and is validly existing under the laws of its jurisdiction respective jurisdictions of incorporation and incorporation; each is conducting its business duly registered, licensed or qualified as an extra-provincial corporation in all material respects in compliance with all applicable laws, rules and regulations of each jurisdiction in which where it carries on business or where the failure to be so registered, licensed or qualified will result in a Material Adverse Effect; other than the Subsidiaries, each of which is wholly-owned by the Corporation, the Corporation has no other subsidiaries;
(b) the Corporation has the corporate power, capacity and holds authority to enter into, and to perform its obligations under, this Agreement; this Agreement has been duly authorized, executed and delivered by the Corporation and is a valid and binding obligation of it, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and other laws of general application limiting the enforceability of creditors’ rights and to the fact that specific performance is an equitable remedy available only in the discretion of the court; all material licencesagreements executed and delivered by the Corporation pursuant to this Agreement have been duly authorized, registrations executed and qualifications delivered by the Corporation and are valid and binding obligations of it, enforceable in all jurisdictions accordance with their respective terms, subject to applicable bankruptcy, insolvency and other laws of general application limiting the enforceability of creditors’ rights and to the fact that specific performance is an equitable remedy available only in which it carries on business necessary the discretion of the court;
(c) each of the Corporation and the Subsidiaries has the corporate power and capacity to own or lease its assets and to carry on its business as now conductedconducted by it;
(bd) the Corporation is and each Subsidiary has good title to its respective assets, free and clear of any Encumbrances other than those which do not give rise to a reporting issuer under all the Provincial Securities Laws Material Adverse Effect and is not included on a list of defaulting issuers maintained by the Ontario Securities Commission no Person has any agreement or right to acquire an interest in default of its disclosure obligations under Title III of the Securities Act (Quebec) and is a registrant under the United States Securities Exchange Act of 1934, as amendedsuch assets;
(ce) the issue of the Shares and the performance by the Corporation of its other obligations contemplated hereby do not require the approval or consent of any governmental authority having jurisdiction, except such as has already been obtained or as contemplated by the Investor Rights Agreement, and will not result in a breach of, and does not create a state of facts which, after notice or lapse of time or both, will result in a breach of, and does not and will not conflict with, (i) any of the terms, conditions or provisions of the constating documents or by-laws or resolutions of the shareholders and directors of the Corporation or the Subsidiaries or any Material Contract; (ii) any statute, rule or regulation applicable to the Corporation or the Subsidiaries; and (iii) any judgment decree or order binding the Corporation, the Subsidiaries or the property or assets of the Corporation or the Subsidiaries;
(f) the authorized capital of the Corporation consists of an unlimited number of Common Shares preferred shares, an unlimited number of special shares issuable in series and an unlimited number of preferred sharesCommon Shares, of which 65,711,367 which, as at the date hereof 58,277,696 Common Shares (and no other shares) are issued and outstanding as fully paid and non-assessable and, based solely upon information contained in publicly available filings with the United States Securities and Exchange Commission and the Ontario Securities Commission, the Disclosure Letter lists each holder of more than 5% of outstanding Common Shares; all of the date hereof, (without giving effect to issued shares of each Subsidiary are owned by the conversion of Debentures provided for hereunder) Corporation and no preferred shares are all such issued and outstanding; outstanding securities of the Corporation and 399,044,700 Common Shares will be each Subsidiary have been validly issued and are outstanding immediately following the Closing (without giving effect to the conversion of Debentures provided for hereunder or by the Other Purchasers, but giving effect to the purchases of Common Shares being made by the Other Purchasers) and will be validly issued, as fully paid and non-assessable;
(d) no person has any agreement, option, right or privilege with or against the Corporation for the purchase, subscription or issuance of securities, issued or unissued of the Corporation, other than the holders of the Debentures, the holders of options or warrants, the Purchaser pursuant to the provisions hereof, the Other Purchasers, the holders of options under the Corporation's existing stock option plan, certain officers ; none of the Corporation pursuant nor any Subsidiary is party to, and to the terms of their engagement;
(e) the Corporation has good and sufficient power, authority and right to enter into this Agreement; this Agreement and the transactions to be completed by the Corporation hereunder have been duly authorized by all necessary corporate action on the part of the Corporation; and this Agreement has been duly executed and delivered by the Corporation and is a legally binding obligation knowledge of the Corporation enforceable against it in accordance there are not, any shareholders agreements, pooling agreements, voting trusts or other agreements or understandings with its terms, subject respect to bankruptcy and insolvency laws and other laws generally affecting the enforceability voting of creditors' rights and the availability of the equitable remedies of injunction and specific performance;
(f) the execution and delivery of this Agreement and other documents contemplated hereunder, the fulfillment of the terms hereof and thereof by the Corporation and the issue, sale and delivery at the Time of Closing of the Purchased Shares do not and will not result in any breach of the articles, by-laws or resolutions securities of the Corporation or at of any Subsidiary; other than as disclosed in the Time Disclosure Letter, there are no agreements, options, warrants, rights of Closing any agreement conversion or instrument other rights pursuant to which either the Corporation or any Subsidiary is, or may become, obligated to issue any shares or any securities convertible or exchangeable, directly or indirectly, into any shares of its Subsidiaries is a party the Corporation or by which it is contractually bound except as waived by the ECF Lendersany Subsidiary, respectively;
(g) except as disclosed the Shares issuable hereunder to the Purchaser on or before Investor, when issued to the date hereofInvestor, each of the Filed Securities Documents at the time of filing, shall be (i) was true fully-paid and correct non-assessable shares in all material respectsthe capital of the Corporation, (ii) contained no Misrepresentation issued in compliance with all Applicable Securities Laws (based and relying upon and assuming the truth and accuracy of the Investor’s representations and warranties herein), and (iii) disclosed all Material Facts and Material Changes (actualissued free of any pre-emptive right, anticipatedresale right, contemplated right of first refusal or threatened, whether financial or otherwise) relating to the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries considered as a wholesimilar right;
(h) except as disclosed the Common Shares issuable upon the due conversion of the Shares, pursuant to their terms, shall be fully-paid and non-assessable shares in the capital of the Corporation;
(i) no order ceasing or suspending trading in securities of the Corporation or prohibiting the sale of securities by the Corporation has been issued and, to the Purchaser on or before knowledge of the date hereofCorporation, no Material Fact proceedings for this purpose have been instituted or Material Change are pending;
(j) there is no requirement for the Corporation to make any filing with, give notice to or obtain any licence, permit, certificate, registration, authorization, consent or approval of any governmental or regulatory authority or third party as a condition to the execution, delivery and performance of this Agreement by the Corporation except the filing with the Ontario Securities Commission of a report on Form 45-106F1 or similar filings required on the issue of the Shares, each prepared and executed in accordance with National Instrument 45-106 of the Canadian Securities Administrators and accompanied by the prescribed fees, timely disclosure reports prescribed by Applicable Securities Laws (including, without limitation, a report filed on Form 8-K in the United States) and complying with the requirements imposed by the OTC Bulletin Board, if any, as a condition to the listing of the Common Shares issuable upon conversion of the Shares;
(k) the Corporation and each Subsidiary is current and up-to-date with all filings required to be made by it under the corporate laws of its jurisdiction of incorporation and all Applicable Securities Laws;
(l) the Corporation is not in default of its obligations under Applicable Securities Laws, and has filed or furnished all reports and other documents required to be filed with the applicable securities commissions in Canada and the United States (the “Public Record”) since December 31, 2005 pursuant to Applicable Securities Laws and no material change relating to the Corporation has occurred with respect to which the requisite material change report has not been filed under Applicable Securities Laws and no such disclosure has been omitted from made to any such securities commissions on a confidential basis;
(m) all reports and documents comprising the Filed Securities Documents that is required under Public Record complied, at their respective time of filing, in all material respects with the Provincial requirements of all Applicable Securities Laws and none of such materials filed by or on behalf of the Corporation with the applicable securities commissions or the stock exchanges pursuant to Applicable Securities Laws contained at the time of filing any untrue statement of a material fact required to be stated therein or is necessary to make the statements therein not misleading therein, in the light of the circumstances in which they were made, not misleading, or any other misrepresentation as at the date of such filing which has not been corrected;
(in) the Corporation has complied in all material respects with all Provincial Securities Laws and all U.S. federal and state securities laws and no confidential material change reports have been filed;
(j) each of the audited consolidated annual financial statements of the Corporation included in as at and for the Filed Securities Documents filed after year ended December 31, 2004 has 2005 contained in the Corporation's annual report for such year:
(i) have been prepared in accordance with Canadian generally accepted accounting principles applied on a basis consistent basis during the periods involved with those of preceding fiscal periods; and
(except as may otherwise be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by applicable lawsii) represent fully and fairly present in all material respects the consolidated assets, liabilities and financial position condition of the Corporation and the Subsidiaries as at the end of the dates thereof such fiscal year and the consolidated results of its operations and cash flows the changes in its financial position for the periods year then ended (subject, ended; and there has not been any material adverse change in the case financial position of unaudited interim financial statementsthe Corporation or any Subsidiary, to normal year-end audit adjustments and provided that such unaudited interim financial statements may omit notes which are not required in the unaudited financial statements);
(k) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there has been no Material Change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operationstheir respective businesses, assets, liabilities or undertaking (contingent or otherwise) or capital since the end of such fiscal year other than as disclosed in the Public Record;
(o) the unaudited consolidated interim financial statements of the Corporation since as at and for the three months ended March 31, 2006:
(i) have been prepared in accordance with Canadian generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods; and
(ii) represent fully and fairly the consolidated assets, liabilities and financial condition of the Corporation and the Subsidiaries as at March 31, 2006 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(p) the auditors of the Corporation who audited the consolidated financial statements for the year ended December 31, 20042005 and who provided their audit report thereon are independent public accountants as required under Applicable Securities Laws;
(lq) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereofDisclosure Letter, each of the Corporation and its Subsidiaries is have conducted their operations in compliance with all applicable laws, rules, regulations, tariffs, orders, directives, permits, licences, approvals, published policies, or published guidelines of any governmental body, including without limitation laws relating to (i) not in violation employment and employment practices, terms and conditions of its articles employment, pay equity and wages, and (ii) anti-pollution and environmental protection legislation, regulations or by-laws or other similar legislation, laws, by-laws, rules and (ii) regulations of any governmental or regulatory bodies except for any non-compliance therewith that has not had and at the date hereof is not in default in reasonably expected to have, with the performance or observance passage of any obligationtime, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it may be bound or to which any the giving of its property or assets is subject, other than defaults that in the aggregate do not have a material adverse effect on the condition, financial or otherwisenotice, or the earningsboth, business affairs or business prospects of a Material Adverse Effect;
(r) the Corporation and each Subsidiary holds all material licenses, certificates, registrations, permits, consents or qualifications required by the appropriate state, provincial, municipal or federal regulatory agencies or bodies necessary in order to enable its Subsidiaries business to be carried on as now conducted and all such licenses, certificates, registrations, permits, consents and qualifications are valid and subsisting and in good standing and neither the Corporation nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such licenses, certificates, registrations, permits, consents, or qualifications which, if the subject of an unfavorable decision, ruling or finding would result in a consolidated basisMaterial Adverse Effect;
(ms) except as disclosed to the Purchaser or in the Filed Securities Documents Disclosure Letter or the Public Record: (i) no legal or governmental proceedings have been instituted and served on or before the date hereof, there are no actions, suits, proceedings or inquiries pending Corporation or, to the knowledge of the Corporation, threatened in writing against or affecting to which either the Corporation at law or any Subsidiary is a party or to which the property of the Corporation or any Subsidiary is subject that would result individually or in equity the aggregate in a Material Adverse Effect; (ii) none of the Corporation or any of its Subsidiaries is a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality which could reasonably be expected to result in a Material Adverse Effect; and (iii) there is no action, suit, proceeding or, to the knowledge of the Corporation, investigation by the Corporation currently pending in any court or before any arbitrator or by that the Corporation or any federalof its Subsidiaries intends to initiate;
(t) except as disclosed in the Public Record, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect each of the Corporation and its each Subsidiary has filed all necessary tax returns and has paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due and there are no material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to the Corporation or the Subsidiaries on which, in any of the above cases, would reasonably be expected to result in a consolidated basis;
(n) the Common Shares are listed and posted for trading on the Toronto Stock Exchange and at the Time of Closing the Purchased Shares will be conditionally approved for listing on the Toronto Stock ExchangeMaterial Adverse Effect; and
(ou) no authorizationsince March 31, approval 2006, except as disclosed in the Disclosure Letter or consent of any court or governmental or regulatory authority is required to be obtained by the Public Record, the Corporation in connection with the sale and delivery of the Purchased Shares hereunder, except such as have been obtainedhas not entered into any Material Contracts or incurred any Indebtedness.
Appears in 1 contract
Samples: Subscription Agreement (Med-Emerg International Inc)
Corporation’s Representations and Warranties. The Corporation represents and warrants to the PurchaserBuyer, as at the date this Agreement is executed by the Corporation and at the Closing Time, as follows, and acknowledges that the Purchaser Buyer is relying thereonon the representations and warranties given by the Corporation in this Agreement, despite any investigation made by or on behalf of the Buyer that:
(a) each of 3.1.1 the Corporation and each Subsidiary of the Corporation that carries on is a material portion of the business of the Corporation (on a consolidated basis) has been corporation duly incorporated and is validly existing under the laws of the Province of British Columbia;
3.1.2 the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action (other than shareholder approval which will be obtained prior to the Closing Date) on the part of the Corporation;
3.1.3 each of the Corporation and its jurisdiction of incorporation subsidiaries has all necessary corporate power, authority and is conducting capacity to own or lease its business in all material respects in compliance with all applicable laws, rules assets and regulations of each jurisdiction in which it carries on business and holds all material licences, registrations and qualifications in all jurisdictions in which it carries on business necessary to carry on its business as now currently being conducted;
(b) 3.1.4 the Corporation is a reporting issuer has all necessary corporate power, authority and capacity to enter into and perform its obligations under all the Provincial Securities Laws this Agreement;
3.1.5 this Agreement has been duly executed and is not included on a list of defaulting issuers maintained delivered by the Ontario Securities Commission Corporation. This Agreement constitutes a legal, valid and binding obligation of the Corporation, enforceable against the Corporation in accordance with its terms, provided that (i) specific performance, injunction and other equitable remedies are discretionary and, in particular, may not be available where damages are considered an adequate remedy; and (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization and other laws generally affecting enforceability of creditors’ rights;
3.1.6 the entering into of this Agreement by the Corporation and, subject to the receipt of shareholder approval and TSXV approval, the performance by the Corporation of the transactions contemplated by this Agreement do not and will not result in the violation of any of the terms and provisions of any law, judgment or in default order applicable to the Corporation and its subsidiaries, or the constating documents of the Corporation or its subsidiaries, or any agreement, written or oral, to which the Corporation or any of its disclosure obligations under Title III subsidiaries may be a party or by which the Corporation or any of the Securities Act (Quebec) and its subsidiaries is a registrant under the United States Securities Exchange Act of 1934, as amendedor may be bound;
(c) 3.1.7 the authorized capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preferred Class A restricted voting shares, of which 65,711,367 Common Shares are issued and outstanding as of the date hereof, (without giving effect to the conversion of Debentures provided for hereunder) and no preferred shares are issued and outstanding; and 399,044,700 Common Shares will be outstanding immediately following the Closing (without giving effect to the conversion of Debentures provided for hereunder or by the Other Purchasers, but giving effect to the purchases of Common Shares being made by the Other Purchasers) and will be validly issued, fully paid and non-assessable;
(d) no person has any agreement, option, right or privilege with or against the Corporation for the purchase, subscription or issuance of securities, issued or unissued of the Corporation, other than the holders of the Debentures, the holders of options or warrants, the Purchaser pursuant to the provisions hereof, the Other Purchasers, the holders of options under the Corporation's existing stock option plan, certain officers of the Corporation pursuant to the terms of their engagement;
(e) the Corporation has good and sufficient power, authority and right to enter into this Agreement; this Agreement and the transactions to be completed by the Corporation hereunder have been duly authorized by all necessary corporate action on the part of the Corporation; and this Agreement has been duly executed and delivered by the Corporation and is a legally binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy and insolvency laws and other laws generally affecting the enforceability of creditors' rights and the availability of the equitable remedies of injunction and specific performance;
(f) the execution and delivery of this Agreement and other documents contemplated hereunder, the fulfillment of the terms hereof and thereof by the Corporation and the issue, sale and delivery . As at the Time of Closing of the Purchased Shares do not and will not result in any breach of the articles, by-laws or resolutions of the Corporation or at the Time of Closing any agreement or instrument to which the Corporation or any of its Subsidiaries is a party or by which it is contractually bound except as waived by the ECF Lenders;
(g) except as disclosed to the Purchaser on or before the date hereof, each of the Filed Securities Documents at the time of filing, (i) was true and correct in all material respects, (ii) contained no Misrepresentation and (iii) disclosed all Material Facts and Material Changes (actual, anticipated, contemplated or threatened, whether financial or otherwise) relating to the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries considered as a whole;
(h) except as disclosed to the Purchaser on or before the date hereof, no Material Fact or Material Change has been omitted from the Filed Securities Documents that is required under the Provincial Securities Laws to be stated therein or is necessary to make the statements therein not misleading in the light of the circumstances in which they were made;
(i) the Corporation has complied in all material respects with all Provincial Securities Laws and all U.S. federal and state securities laws and no confidential material change reports have been filed;
(j) each of the consolidated financial statements of the Corporation included in the Filed Securities Documents filed after December 31, 2004 has been prepared in accordance with Canadian generally accepted accounting principles applied on a consistent basis during the periods involved (except as may otherwise be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by applicable laws) and fairly present in all material respects the consolidated financial position of the Corporation as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended (subject, in the case of unaudited interim financial statements, to normal year-end audit adjustments and provided that such unaudited interim financial statements may omit notes which are not required in the unaudited financial statements);
(k) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there has been no Material Change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation since December 31, 2004;
(l) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, each of the Corporation and its Subsidiaries is (i) not in violation of its articles or by-laws and (ii) is not in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it may be bound or to which any of its property or assets is subject, other than defaults that in the aggregate do not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Corporation and its Subsidiaries on a consolidated basis;
(m) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there are no actions, suits, proceedings or inquiries pending or, to the knowledge 22,078,729 Common Shares and 10,014,602 Class A restricted voting shares validly issued and outstanding as fully paid and non-assessable shares of the Corporation, threatened in writing against or affecting . All securities of the Corporation at law or have been issued in equity or before or by compliance with applicable laws and have not been issued in violation of any federal, provincial, state, municipal pre-emptive rights or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect contractual rights to purchase securities granted by the Corporation and its Subsidiaries on a consolidated basisCorporation;
(n) 3.1.8 the Purchased Shares have been duly and validly authorized and, at the Closing Date, upon cancellation of the Promissory Note, the Purchased Securities will be validly issued as fully paid and non-assessable shares of the Corporation;
3.1.9 the issued and outstanding Common Shares (excluding the Purchased Shares) are listed and posted for trading on the Toronto Stock Exchange TSXV and at the Time of Closing the Purchased Shares will be conditionally approved for listing on the Toronto Stock Exchange; and
(o) no authorization, approval or consent of any court or governmental or regulatory authority is required to be obtained by the Corporation is in connection compliance in all material respects with the rules and regulations of the TSXV other than the requirement to have independent directors on its Board and audit committee. The TSXV has conditionally accepted notice of the sale and delivery of the Purchased Shares hereunderpursuant to the terms of this Agreement, except such as have subject to the conditions set out in the letter from the TSXV dated August 25, 2016 in respect of the transactions contemplated by this Agreement;
3.1.10 the Corporation is a “reporting issuer” in British Columbia, Alberta and Ontario and is in compliance in all material respects with applicable securities laws in those jurisdictions;
3.1.11 no securities commission or comparable authority has issued any order preventing or suspending the distribution of the Common Shares or the trading of securities of the Corporation generally and, to the Corporation’s knowledge, there is no investigation, inquiry or proceeding for this purpose that has been obtained.commenced or which is pending, contemplated or threatened;
Appears in 1 contract
Corporation’s Representations and Warranties. The Corporation represents and warrants to the PurchaserBuyer, as at the date this Agreement is executed by the Corporation and at the Closing Time, as follows, and acknowledges that the Purchaser Buyer is relying thereonon the representations and warranties given by the Corporation in this Agreement, despite any investigation made by or on behalf of the Buyer that:
(a) each of 3.1.1 the Corporation is a corporation duly continued and each Subsidiary of the Corporation that carries on a material portion of the business of the Corporation (on a consolidated basis) has been duly incorporated and is validly existing under the laws of the Province of British Columbia;
3.1.2 the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action (other than shareholder approval, including shareholder approval required by MI 61-101, which will be obtained prior to the Closing Date) on the part of the Corporation;
3.1.3 each of the Corporation and its jurisdiction of incorporation subsidiaries has all necessary corporate power, authority and is conducting capacity to own or lease its business in all material respects in compliance with all applicable laws, rules assets and regulations of each jurisdiction in which it carries on business and holds all material licences, registrations and qualifications in all jurisdictions in which it carries on business necessary to carry on its business as now currently being conducted;
(b) 3.1.4 the Corporation is a reporting issuer has all necessary corporate power, authority and capacity to enter into and perform its obligations under all the Provincial Securities Laws this Agreement;
3.1.5 this Agreement has been duly executed and is not included on a list of defaulting issuers maintained delivered by the Ontario Securities Commission Corporation. This Agreement constitutes a legal, valid and binding obligation of the Corporation, enforceable against the Corporation in accordance with its terms, provided that (i) specific performance, injunction and other equitable remedies are discretionary and, in particular, may not be available where damages are considered an adequate remedy; and (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization and other laws generally affecting enforceability of creditors’ rights;
3.1.6 the entering into of this Agreement by the Corporation and, subject to the receipt of shareholder approval (including as required by MI 61-101), the Valuation, NASDAQ approval and TSXV approval, the performance by the Corporation of the transactions contemplated by this Agreement do not and will not result in the violation of any of the terms and provisions of any law, judgment or in default order applicable to the Corporation and its subsidiaries, or the constating documents of the Corporation or its subsidiaries, or any agreement, written or oral, to which the Corporation or any of its disclosure obligations under Title III subsidiaries may be a party or by which the Corporation or any of the Securities Act (Quebec) and its subsidiaries is a registrant under the United States Securities Exchange Act of 1934, as amendedor may be bound;
(c) 3.1.7 the authorized capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preferred Class A restricted voting shares, of which 65,711,367 Common Shares are issued and outstanding as of the date hereof, (without giving effect to the conversion of Debentures provided for hereunder) and no preferred shares are issued and outstanding; and 399,044,700 Common Shares will be outstanding immediately following the Closing (without giving effect to the conversion of Debentures provided for hereunder or by the Other Purchasers, but giving effect to the purchases of Common Shares being made by the Other Purchasers) and will be validly issued, fully paid and non-assessable;
(d) no person has any agreement, option, right or privilege with or against the Corporation for the purchase, subscription or issuance of securities, issued or unissued of the Corporation, other than the holders of the Debentures, the holders of options or warrants, the Purchaser pursuant to the provisions hereof, the Other Purchasers, the holders of options under the Corporation's existing stock option plan, certain officers of the Corporation pursuant to the terms of their engagement;
(e) the Corporation has good and sufficient power, authority and right to enter into this Agreement; this Agreement and the transactions to be completed by the Corporation hereunder have been duly authorized by all necessary corporate action on the part of the Corporation; and this Agreement has been duly executed and delivered by the Corporation and is a legally binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy and insolvency laws and other laws generally affecting the enforceability of creditors' rights and the availability of the equitable remedies of injunction and specific performance;
(f) the execution and delivery of this Agreement and other documents contemplated hereunder, the fulfillment of the terms hereof and thereof by the Corporation and the issue, sale and delivery . As at the Time of Closing of the Purchased Shares do not and will not result in any breach of the articles, by-laws or resolutions of the Corporation or at the Time of Closing any agreement or instrument to which the Corporation or any of its Subsidiaries is a party or by which it is contractually bound except as waived by the ECF Lenders;
(g) except as disclosed to the Purchaser on or before the date hereof, each of the Filed Securities Documents at the time of filing, (i) was true and correct in all material respects, (ii) contained no Misrepresentation and (iii) disclosed all Material Facts and Material Changes (actual, anticipated, contemplated or threatened, whether financial or otherwise) relating to the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries considered as a whole;
(h) except as disclosed to the Purchaser on or before the date hereof, no Material Fact or Material Change has been omitted from the Filed Securities Documents that is required under the Provincial Securities Laws to be stated therein or is necessary to make the statements therein not misleading in the light of the circumstances in which they were made;
(i) the Corporation has complied in all material respects with all Provincial Securities Laws and all U.S. federal and state securities laws and no confidential material change reports have been filed;
(j) each of the consolidated financial statements of the Corporation included in the Filed Securities Documents filed after December 31, 2004 has been prepared in accordance with Canadian generally accepted accounting principles applied on a consistent basis during the periods involved (except as may otherwise be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by applicable laws) and fairly present in all material respects the consolidated financial position of the Corporation as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended (subject, in the case of unaudited interim financial statements, to normal year-end audit adjustments and provided that such unaudited interim financial statements may omit notes which are not required in the unaudited financial statements);
(k) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there has been no Material Change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation since December 31, 2004;
(l) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, each of the Corporation and its Subsidiaries is (i) not in violation of its articles or by-laws and (ii) is not in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it may be bound or to which any of its property or assets is subject, other than defaults that in the aggregate do not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Corporation and its Subsidiaries on a consolidated basis;
(m) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there are no actions, suits, proceedings or inquiries pending or, to the knowledge 2,133,512 Common Shares validly issued and outstanding as fully paid and non-assessable shares of the Corporation, threatened in writing against or affecting . All securities of the Corporation at law or have been issued in equity or before or by compliance with applicable laws and have not been issued in violation of any federal, provincial, state, municipal pre-emptive rights or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect contractual rights to purchase securities granted by the Corporation and its Subsidiaries on a consolidated basisCorporation;
(n) 3.1.8 the Purchased Securities have been duly and validly authorized and, at the Closing Date, upon reduction of U.S.$7,000,000 of the Principal Amount due under the Promissory Note, the Purchased Securities will be validly issued as fully paid and non-assessable shares of the Corporation;
3.1.9 the issued and outstanding Common Shares (excluding the Purchased Securities) are listed and posted for trading on the Toronto Stock Exchange TSXV and at the Time of Closing the Purchased Shares will be conditionally approved for listing on the Toronto Stock Exchange; and
(o) no authorization, approval or consent of any court or governmental or regulatory authority is required to be obtained by the Corporation is in connection compliance in all material respects with the sale rules and delivery regulations of the TSXV other than the requirement to have independent directors on its Board and audit committee;
3.1.10 as of the Closing Date, the Common Shares forming part of the Purchased Securities will be listed and posted for trading on the TSXV and NASDAQ;
3.1.11 the Corporation is a “reporting issuer” in British Columbia, Alberta and Ontario and is in compliance in all material respects with applicable securities laws in those jurisdictions;
3.1.12 no securities commission or comparable authority has issued any order preventing or suspending the distribution of the Common Shares hereunderor the trading of securities of the Corporation generally and, except such as have to the Corporation’s knowledge, there is no investigation, inquiry or proceeding for this purpose that has been obtained.commenced or which is pending, contemplated or threatened;
Appears in 1 contract
Corporation’s Representations and Warranties. The Corporation represents and warrants to the PurchaserMGI, and acknowledges that the Purchaser MGI is relying thereon, that:
(a) each of the Corporation and each Subsidiary of the Corporation that carries on a material portion of the business of the Corporation (on a consolidated basis) has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation and is conducting its business in all material respects in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on business and holds all material licenceslicenses, registrations and qualifications in all jurisdictions in which it carries on business necessary to carry on its business as now conducted;
(b) the Corporation is has not taken any corporate action nor have any other steps been taken or legal proceedings been started or, to the Corporation's knowledge, threatened against the Corporation for its winding-up, dissolution, liquidation or reorganization or for the appointment of a reporting issuer under receiver, trustee or similar officer of it or any or all the Provincial Securities Laws and is not included on a list of defaulting issuers maintained by the Ontario Securities Commission or in default of its disclosure obligations under Title III of the Securities Act (Quebec) and is a registrant under the United States Securities Exchange Act of 1934, as amendedassets or revenues;
(c) the authorized capital of the Corporation consists of an unlimited number of Common Class A Shares, an unlimited number of Class B Shares and an unlimited number of preferred sharesClass C Shares, of which 65,711,367 Common which, as at the date hereof, 12,342,980 Class A Shares, 3,402,941 Class B Shares and 39,500 Class C Shares are issued and outstanding as outstanding, all of the date hereofwhich are duly authorized, (without giving effect to the conversion of Debentures provided for hereunder) and no preferred shares are issued and outstanding; and 399,044,700 Common Shares will be outstanding immediately following the Closing (without giving effect to the conversion of Debentures provided for hereunder or by the Other Purchasers, but giving effect to the purchases of Common Shares being made by the Other Purchasers) and will be validly issued, fully paid and non-assessablenonassessable;
(d) no person has any agreement, option, right or privilege with or against the Corporation for the purchase, subscription or issuance of securities, issued or unissued of the Corporation, other than the holders of the Debentures, the holders of options or warrants, the Purchaser MGI pursuant to the provisions hereof, the Other Purchasers, the holders of options under the Corporation's existing stock option plan, certain officers programs and any securities which may be issued or issuable as a result of the Corporation pursuant to exercise by a shareholder of the terms of their engagementpre-emptive right set forth in the Shareholders' Agreement;
(e) the Corporation has good and sufficient corporate power, authority and right to enter into this Agreement; on the First Equity Closing Date, this Agreement and the transactions to be completed by the Corporation hereunder will have been duly authorized by all necessary corporate action on the part of the Corporation; and this Agreement has been duly executed and delivered by the Corporation and is a legally binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy and insolvency laws and other laws generally affecting the enforceability of creditors' rights and the availability of the equitable remedies of injunction and specific performanceremedies;
(f) the execution and delivery of this Agreement and other documents contemplated hereunderAgreement, the fulfillment fulfilment of the terms hereof and thereof by the Corporation and the issue, sale and delivery at the Time of Closing of the Purchased Shares do not and will not violate, conflict with or result in any breach of the articles, by-laws or resolutions of the Corporation or at the Time of Closing any agreement or instrument to which the Corporation or any of its Subsidiaries is a party or by which it is contractually bound except as waived by bound, or any law, statute, rule, regulation, order judgment or decree to which the ECF LendersCorporation or its properties are subject, other than such violations, conflicts or breaches that in the aggregate would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Corporation;
(g) except as disclosed subject to payment therefor, the Purchaser Purchased Shares to be delivered to you on or before the date hereof, each of First Equity Closing Date and on the Filed Securities Documents at Second Equity Closing Date will have been duly authorized by all necessary corporate action on the time of filing, (i) was true and correct in all material respects, (ii) contained no Misrepresentation and (iii) disclosed all Material Facts and Material Changes (actual, anticipated, contemplated or threatened, whether financial or otherwise) relating to the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital part of the Corporation and its Subsidiaries considered will be duly issued as a wholefully paid and nonassessable shares of the Corporation;
(h) except the Financial Information presents fairly the financial position of the Corporation as disclosed to at the Purchaser on or before dates indicated and the date hereof, no Material Fact or Material Change results of its operations for the periods specified and the said Financial Information has been omitted from the Filed Securities Documents that is required under the Provincial Securities Laws to be stated therein or is necessary to make the statements therein not misleading prepared in the light of the circumstances conformity with generally accepted accounting principles in which they were madeCanada applied on a consistent basis;
(i) the Corporation has complied in all material respects with all Provincial Securities Laws and all U.S. federal and state securities laws and no confidential material change reports have been filed;
(j) each of the consolidated financial statements of the Corporation included in the Filed Securities Documents filed after December 31, 2004 has been prepared in accordance with Canadian generally accepted accounting principles applied on a consistent basis during the periods involved (except as may otherwise be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by applicable laws) and fairly present in all material respects the consolidated financial position of the Corporation as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended (subject, in the case of unaudited interim financial statements, to normal year-end audit adjustments and provided that such unaudited interim financial statements may omit notes which are not required in the unaudited financial statements);
(k) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there has been no Material Change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation since December 31, 2004;
(l) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, each of the Corporation and its Subsidiaries is (i) not in violation of its articles or by-laws and (ii) is not in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it may be bound or to which any of its property or assets is subject, other than defaults that in the aggregate do not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Corporation and its Subsidiaries on a consolidated basisCorporation;
(mj) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there are no actions, suits, proceedings or inquiries pending or, to the knowledge of the Corporation, or threatened in writing against or affecting the Corporation at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Corporation and its Subsidiaries on a consolidated basisor the transactions contemplated hereby;
(n) the Common Shares are listed and posted for trading on the Toronto Stock Exchange and at the Time of Closing the Purchased Shares will be conditionally approved for listing on the Toronto Stock Exchange; and
(ok) no authorization, approval or consent of any court or governmental or regulatory authority is required to be obtained by the Corporation in connection with the sale and delivery of the Purchased Shares hereunder, except as may be required under the Shareholders' Agreement, the Unanimous Shareholders' Agreement and except such as have been obtained;
(l) the Corporation has no Subsidiary;
(m) except as reflected in the Latest Balance Sheet, the Corporation has no liabilities (whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due, whether known or unknown, and regardless of when asserted) arising out of transactions or events heretofore entered into, or any action or inaction, or any state of facts existing, with respect to or based upon transactions or events heretofore occurring, except liabilities which have arisen after the Balance Sheet Date in the ordinary course of business (none of which is a material uninsured liability for breach of contract, breach of warranty, tort, infringement, claim or lawsuit);
(n) since the Balance Sheet Date, there has been no material adverse change in the assets, financial condition, operating results, customer, employee or supplier relations, business condition or prospects of the Corporation;
(o) the Corporation owns and possesses all right, title and interest, or holds a valid license, in and to all rights in patents, patent applications, trademarks, service marks, trade names, corporate names, copyrights, trade secrets, know-how or other intellectual property rights owned by, licensed to or otherwise controlled by the Corporation or used in, developed for use in or necessary to the conduct in all material respects of the Corporation's business as now conducted (the "Intellectual Property Rights"); the Corporation has not received any notice of any infringement or misappropriation by, or conflict from, any third party with respect to the Intellectual Property Rights; no claim by any third party contesting the validity of any Intellectual Property Rights has been made, is currently outstanding or, to the best knowledge of the Corporation, is threatened; the Corporation has not received any notice of any infringement, misappropriation or violation by the Corporation of any intellectual property rights of any third parties and, to the best of its knowledge, the Corporation has not infringed, misappropriated or otherwise violated any such intellectual property rights;
(p) to the best knowledge of the Corporation, no executive employee of the Corporation and no group of the Corporation's employees has any plans to terminate his or its employment; the Corporation has complied in all material respects with all laws relating to the employment of labor, including provisions thereof relating to wages, hours, collective bargaining and the payment of social security and other taxes; the Corporation has no material labor relations problem pending and its labor relations are satisfactory; and to the best knowledge of the Corporation, no employee of the Corporation is subject to any secrecy or noncompetition agreement or any other agreement or restriction of any kind that would impede in any material way the ability of such employee to carry out fully all activities of such employee in furtherance of the business of the Corporation;
(q) the Corporation and its officers, directors, agents and employees have complied in all material respects with all applicable laws, regulations and other requirements, including, but not limited to, federal, provincial, local and foreign laws, ordinances, rules, regulations and other requirements which materially affect the business of the Corporation or its property and to which the Corporation or its property may be subject, and no claims have been filed against the Corporation alleging a material violation of any such laws, regulations or other requirements;
(r) the Corporation has, in full force and effect, all licenses, permits and certificates, from federal, provincial, local and foreign authorities necessary to conduct in all material respects its business and own and operate its properties, and the Corporation has conducted its business in compliance with all material terms and conditions of such licenses, permits and certificates; and
(s) neither this Agreement nor any of the documents provided to MGI by or on behalf of the Corporation nor the Financial Information, taken as a whole, contain any untrue statement of a material fact regarding the Corporation or its business or the transactions contemplated by this Agreement; this Agreement, the documents provided to MGI by or on behalf of the Corporation and the Financial Information, taken as a whole, do not omit any material fact necessary to make the statements contained herein or therein, in light of the circumstances in which they were made, not misleading.
Appears in 1 contract
Corporation’s Representations and Warranties. The Corporation represents and warrants to the Purchaser, and acknowledges that the Purchaser is relying thereon, that:
(a) each of the Corporation and each Subsidiary of the Corporation that carries on a material portion of the business of the Corporation (on a consolidated basis) has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation and is conducting its business in all material respects in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on business and holds all material licences, registrations and qualifications in all jurisdictions in which it carries on business necessary to carry on its business as now conducted;
(b) the Corporation is a reporting issuer under all the Provincial Securities Laws and is not included on a list of defaulting issuers maintained by the Ontario Securities Commission or in default of its disclosure obligations under Title III of the Securities Act (Quebec) and is a registrant under the United States Securities Exchange Act of 1934, as amended;
(c) the authorized capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preferred shares, of which 65,711,367 Common Shares are issued and outstanding as of the date hereof, (without giving effect to the conversion of Debentures provided for hereunder) and no preferred shares are issued and outstanding; and 399,044,700 Common Shares will be outstanding immediately following the Closing (without giving effect to the conversion of Debentures provided for hereunder or by the Other Purchasers, but giving effect to the purchases of Common Shares being made by the Other Purchasers) and will be validly issued, fully paid and non-assessable;
(d) no person has any agreement, option, right or privilege with or against the Corporation for the purchase, subscription or issuance of securities, issued or unissued of the Corporation, other than the holders of the Debentures, the holders of options or warrants, the Purchaser pursuant to the provisions hereof, the Other Purchasers, the holders of options under the Corporation's existing stock option plan, certain officers of the Corporation pursuant to the terms of their engagement;
(e) the Corporation has good and sufficient power, authority and right to enter into this Agreement; this Agreement and the transactions to be completed by the Corporation hereunder have been duly authorized by all necessary corporate action on the part of the Corporation; and this Agreement has been duly executed and delivered by the Corporation and is a legally binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy and insolvency laws and other laws generally affecting the enforceability of creditors' rights and the availability of the equitable remedies of injunction and specific performance;
(f) the execution and delivery of this Agreement and other documents contemplated hereunder, the fulfillment of the terms hereof and thereof by the Corporation and the issue, sale and delivery at the Time of Closing of the Purchased Shares do not and will not result in any breach of the articles, by-laws or resolutions of the Corporation or at the Time of Closing any agreement or instrument to which the Corporation or any of its Subsidiaries is a party or by which it is contractually bound except as waived by the ECF Lenders;
(g) except as disclosed to the Purchaser on or before the date hereof, each of the Filed Securities Documents at the time of filing, (i) was true and correct in all material respects, (ii) contained no Misrepresentation and (iii) disclosed all Material Facts and Material Changes (actual, anticipated, contemplated or threatened, whether financial or otherwise) relating to the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries considered as a whole;
(h) except as disclosed to the Purchaser on or before the date hereof, no Material Fact or Material Change has been omitted from the Filed Securities Documents that is required under the Provincial Securities Laws to be stated therein or is necessary to make the statements therein not misleading in the light of the circumstances in which they were made;
(i) the Corporation has complied in all material respects with all Provincial Securities Laws and all U.S. federal and state securities laws and no confidential material change reports have been filed;
(j) each of the consolidated financial statements of the Corporation included in the Filed Securities Documents filed after December 31, 2004 has been prepared in accordance with Canadian generally accepted accounting principles applied on a consistent basis during the periods involved (except as may otherwise be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by applicable laws) and fairly present in all material respects the consolidated financial position of the Corporation as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended (subject, in the case of unaudited interim financial statements, to normal year-end audit adjustments and provided that such unaudited interim financial statements may omit notes which are not required in the unaudited financial statements);
(k) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there has been no Material Change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation since December 31, 2004;
(l) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, each of the Corporation and its Subsidiaries is (i) not in violation of its articles or by-laws and (ii) is not in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it may be bound or to which any of its property or assets is subject, other than defaults that in the aggregate do not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Corporation and its Subsidiaries on a consolidated basis;
(m) except as disclosed to the Purchaser or in the Filed Securities Documents on or before the date hereof, there are no actions, suits, proceedings or inquiries pending or, to the knowledge of the Corporation, threatened in writing against or affecting the Corporation at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Corporation and its Subsidiaries on a consolidated basis;
(n) the Common Shares are listed and posted for trading on the Toronto Stock Exchange and at the Time of Closing the Purchased Shares will be conditionally approved for listing on the Toronto Stock Exchange; and
(o) no authorization, approval or consent of any court or governmental or regulatory authority is required to be obtained by the Corporation in connection with the sale and delivery of the Purchased Shares hereunder, except such as have been obtained.
Appears in 1 contract
