Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation: (a) will advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts; (b) will advise the Agent, promptly after receiving notice or obtaining knowledge thereof, of: (i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material; (ii) the institution, threatening or contemplation of any proceeding for any such purposes; (iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or (iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Final Prospectus or for additional information, and will use its commercially reasonable efforts to prevent the issuance of any order referred to in (i) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possible; (c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following the Closing Date; (d) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing of the Common Shares on the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system; (e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and (f) will use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus under the heading “Use of Proceeds”.
Appears in 2 contracts
Samples: Agency Agreement, Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:
(a) will advise shall prior to the Closing Time, allow the Agent (and its counsel and consultants) to conduct all due diligence which the Agent may reasonably require or consider necessary or appropriate in order to fulfill the Agent, promptly after receiving notice thereof, of ’s obligations as registrants to complete the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and Offering as provided herein. The Corporation will provide evidence reasonably satisfactory to the Agent (and its counsel and consultants) reasonable access to the Corporation’s properties (if any), senior management personnel and corporate, financial and other records, for the purposes of conducting such due diligence. Without limiting the scope of the due diligence inquiry the Agent (or its counsel and consultants) may conduct, the Corporation shall also make available its directors, senior management and counsel to answer any questions which the Agent may have and to participate in one or more due diligence sessions to be held prior to Closing (collectively, the “Due Diligence Session”). The Agent shall distribute a list of written questions in advance of each such filing and copies of such receiptsDue Diligence Session;
(b) will shall forthwith advise the AgentAgent of, promptly after receiving notice or obtaining knowledge thereofand provide the Agent with copies of, ofany written communications relating to:
(i) the issuance by any Canadian Securities Regulators securities regulatory authority, including the TSX, of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;Prospectus Amendment or any cease trading or stop order or any halt in trading relating to the Common Shares or the institution or threat of any proceedings for that purpose; and
(ii) the institution, threatening or contemplation receipt of any proceeding for material communication from any such purposessecurities regulatory authority, including the TSX, or other authority relating to the Prospectus or any Prospectus Amendment or the Offering;
(iiic) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Final Prospectus or for additional information, and will shall use its commercially reasonable best efforts to prevent the issuance of any order referred to in (ib)(i) above and, if any such order is issued, shall forthwith take all reasonable steps which it is able to take and which may be necessary or desirable in order to obtain the withdrawal thereof as quickly soon as possibleis reasonably practicable;
(cd) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will shall use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Applicable Securities Laws of each of the Qualifying Canadian Selling Jurisdictions to for as long as any Warrants remain outstanding, other than in a business combination or similar transaction where all the date outstanding securities of the Corporation have been exchanged for cash or the securities of another issuer which is 24 months following the Closing Datea reporting issuer under any Applicable Securities Laws;
(de) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will shall use its commercially reasonable best efforts to maintain the listing of the Common Shares on the CSE TSX and the OTCQB or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so for as long as any Warrants remain outstanding, other than in a business combination or similar transaction where all the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases outstanding securities of the Corporation have been exchanged for review by cash or the Agent and the Agent's counsel prior to issuance, provided that securities of another issuer which is a reporting issuer under any such review will be completed in a timely manner; andApplicable Securities Laws;
(f) shall use its commercially reasonable efforts to ensure that the Unit Shares and the Warrant Shares (including for greater certainty any Common Shares underlying the Compensation Warrants) will be conditionally approved for listing on the TSX upon their issue;
(g) shall use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus Supplement under the heading “Use of Proceeds”; and
(h) shall, as soon as practicable, use its commercially reasonable efforts to receive all necessary consents to the transactions contemplated herein.
Appears in 2 contracts
Samples: Agency Agreement (Titan Medical Inc), Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:
(a) will advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts;
(b) will shall forthwith advise the AgentAgent of, promptly after receiving notice or obtaining knowledge thereofand provide it with copies of, ofany written communications relating to:
(i) the issuance by any Canadian Securities Regulators securities regulatory authority, including the TSXV, of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;, or any cease trading or stop order or any halt in trading relating to the Common Shares or the institution or threat of any proceedings for that purpose; and
(ii) the institution, threatening or contemplation receipt of any proceeding for material communication from any such purposessecurities regulatory authority, including the TSXV, or other authority relating to the Prospectus or any Supplementary Material or the Offering;
(iiic) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Final Prospectus or for additional information, and will shall use its commercially reasonable efforts to prevent the issuance of any order referred to in (ib)(i) above and, if any such order is issued, shall forthwith take all reasonable steps which may be necessary or desirable in order to obtain the withdrawal thereof as quickly soon as possibleis reasonably practicable;
(cd) except shall undertake to the extent the Corporation participates in a merger or business combination transaction which do all such things that are necessary to enable the Corporation’s board of directors determines is Auditors to provide the usual certificates, consents and long-form comfort letter to the Agent and to attend and participate in any due diligence teleconference or meeting with the best interest Agent, as prescribed by Section 2(b), including, if necessary, retaining, at the Corporation’s expense, the Corporation’s Auditors to conduct a review of the Corporation unaudited financial statements of the Corporation, and following which the Corporation will be review of any such other materials deemed necessary by the Corporation’s auditors to enable their participation in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, any due diligence teleconference or meeting requested by the Agent;
(e) will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) in good standing and not in default of the requirements of the Applicable Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following the Closing Date;
(df) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing of the Common Shares on the CSE TSXV or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as and to obtain the Corporation meets necessary approvals to list the minimum listing requirements of Unit Shares, Warrant Shares and Compensation Shares on the CSE or such other exchange or quotation system;
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely mannerTSXV; and
(fg) will use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus under the heading “Use of Proceeds”.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. (1) The Corporation hereby covenants to and agrees with the Agent that the CorporationUnderwriters that:
(a) the Corporation will advise the AgentUnderwriters, promptly after receiving notice thereof, of the time when the Final each Offering Document or Issuer Free Writing Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System filed, and will provide evidence reasonably satisfactory to the Agent Underwriters of each such filing and copies a copy of each such receiptsPassport Prospectus Receipt;
(b) between the date hereof and the date of completion of the Distribution of the Offered Shares, the Corporation will advise the AgentUnderwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators Qualifying Authorities or the SEC of any order suspending or preventing the use of any of the Preliminary Offering Documents or any Issuer Free Writing Prospectus, including without limitation the Amended and Restated Preliminary Prospectusissuance by the SEC of any stop order suspending the effectiveness of the Registration Statement, or, to the knowledge of the Corporation, the Final Prospectus or threatening of any Supplementary Materialsuch order;
(ii) the institutionissuance by any Qualifying Authorities, threatening the SEC, the TSX or contemplation the NYSE of any proceeding for any such purposes;
(iii) any order, ruling, or determination order having the effect of ceasing or suspending the sale Distribution of the Common Shares or ceasing the trading in any securities of the Corporation (including Corporation, or of the Offered Units) has been issued by any Securities Regulator or institution or, to the institutionknowledge of the Corporation, threatening or contemplation of any proceeding for any such purposespurpose; or
(iviii) any requests made by any Canadian Securities Regulators Qualifying Authorities or the SEC for amending or supplementing any of the Final Offering Documents or any Issuer Free Writing Prospectus or for additional information, ; and the Corporation will use its commercially reasonable best efforts to prevent the issuance of any order referred to in subparagraph (ib)(i) above or subparagraph (b)(ii) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possibleat the earliest possible time;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position use its best efforts to apply obtain the conditional listing of the Offered Shares on the TSX by the Closing Time, subject only to Canadian Securities Regulators to cease to be a “reporting issuer”the official notice of issuance, and the Corporation will use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or have the equivalent thereof) not in default of Offered Shares listed and admitted and authorized for trading on the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following NYSE by the Closing DateTime;
(d) except as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), the Corporation will make generally available to its security holders and to the extent the Corporation participates in a merger Underwriters an earnings statement or business combination transaction which the Corporation’s board of directors determines is in the best interest statements of the Corporation and following its Subsidiaries which will satisfy the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing provisions of Section 11(a) of the Common Shares on Securities Act and Rule 158 under the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;Securities Act; and
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and
(f) will use the net proceeds of from the Offering contemplated herein in the manner and subject to the qualifications as described in the Prospectus under Preliminary Prospectuses and the heading “Use Final Prospectuses.
(2) Prior to the completion of Proceeds”the Distribution of the Offered Shares, the Corporation will file all documents required to be filed with or furnished to the Qualifying Authorities and the SEC pursuant to Applicable Securities Laws.
Appears in 1 contract
Covenants of the Corporation. 8.1 The Corporation hereby covenants to and agrees with the Agent that the CorporationUnderwriters that:
(a) the Corporation will advise the AgentUnderwriters, promptly after receiving notice thereof, of the time when the Final Preliminary Prospectus and the Prospectus and any Supplementary Material has been filed and the Preliminary Receipt, the Final Receipt and any other receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent Underwriters of each such filing and copies the issuance of such the Preliminary Receipt, the Final Receipt and any other receipts;
(b) the Corporation will advise the AgentUnderwriters, promptly after receiving notice or obtaining knowledge thereofknowledge, of:
of (i) the issuance by any Canadian Securities Regulators Commission of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;
, (ii) the institutionissuance by the Securities and Exchange Commission or any state securities regulator of any order suspending or preventing the use of the U.S. Placement Memorandum, (iii) the suspension of the qualification of the Offered Securities for offering or sale in any of the Qualifying Jurisdictions or the suspension of the offer and sale of the Offered Securities pursuant to certain exemptions from the registration requirements in the United States in accordance with section 14, (iv) the institution or threatening or contemplation of any proceeding for any such of those purposes;
(iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(ivv) any requests made by any Canadian Securities Regulators for amending Commission or supplementing the Final Securities and Exchange Commission or any state securities regulator to amend or supplement the Preliminary Prospectus, the Prospectus or the U.S. Placement Memorandum or for additional information, and will use its commercially reasonable efforts to prevent the issuance of any such order referred to in (i) above and, if any such order is issued, to obtain the withdrawal thereof of the order as quickly soon as possible;is reasonably practicable; and
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of net proceeds from the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following the Closing Date;
(d) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation issue and following which the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing of the Common Shares on the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;
(e) during the distribution sale of the Offered Units, the Corporation will consult Securities substantially in accordance with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and
(f) will use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus disclosure set out under the heading “"Use of Proceeds”" in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:
(a) will shall advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material Prospectus Amendment has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts;
(b) shall prior to the Closing Time, allow the Agent (and its counsel and consultants) to conduct all due diligence which the Agent may reasonably require or consider necessary or appropriate in order to fulfill the Agent’s obligations as registrants to complete the Offering as provided herein. The Corporation will provide to the Agent (and its counsel and consultants) reasonable access to the Corporation’s properties (if any), senior management personnel and corporate, financial and other records, for the purposes of conducting such due diligence. Without limiting the scope of the due diligence inquiry the Agent (or its counsel and consultants) may conduct, the Corporation shall also make available its directors, senior management and counsel to answer any questions which the Agent may have and to participate in one or more due diligence sessions to be held prior to Closing (collectively, the “Due Diligence Session”). The Agent shall distribute a list of written questions in advance of each Due Diligence Session;
(c) shall forthwith advise the AgentAgent of, promptly after receiving notice or obtaining knowledge thereofand provide the Agent with copies of, ofany written communications relating to:
(i) the issuance by any Canadian Securities Regulators securities regulatory authority, including the TSX, of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;Prospectus Amendment or any cease trading or stop order or any halt in trading relating to the Common Shares or the institution or threat of any proceedings for that purpose; and
(ii) the institution, threatening or contemplation receipt of any proceeding for material communication from any such purposessecurities regulatory authority, including the TSX, or other authority relating to the Prospectus or any Prospectus Amendment or the Offering;
(iiid) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Final Prospectus or for additional information, and will shall use its commercially reasonable best efforts to prevent the issuance of any order referred to in (ic)(i) above and, if any such order is issued, shall forthwith take all reasonable steps which it is able to take and which may be necessary or desirable in order to obtain the withdrawal thereof as quickly soon as possibleis reasonably practicable;
(ce) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will shall use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Applicable Securities Laws of each of the Qualifying Canadian Selling Jurisdictions to for as long as any Warrants remain outstanding, other than in a business combination or similar transaction where all the date outstanding securities of the Corporation have been exchanged for cash or the securities of another issuer which is 24 months following the Closing Datea reporting issuer under any Applicable Securities Laws;
(df) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will shall use its commercially reasonable best efforts to maintain the listing of the Common Shares on the CSE TSX and the OTCQB or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so for as long as any Warrants remain outstanding, other than in a business combination or similar transaction where all the outstanding securities of the Corporation meets have been exchanged for cash or the minimum listing requirements securities of the CSE or such other exchange or quotation systemanother issuer which is a reporting issuer under any Applicable Securities Laws;
(eg) during shall use its commercially reasonable efforts to ensure that the distribution of the Offered UnitsUnit Shares, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent Warrant Shares and the Agent's counsel prior to issuance, provided that any such review Compensation Shares will be completed in a timely manner; andconditionally approved for listing on the TSX upon their issue;
(fh) will shall use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus under the heading “Use of Proceeds”; and
(i) shall, as soon as practicable, use its commercially reasonable efforts to receive all necessary consents to the transactions contemplated herein.
Appears in 1 contract
Samples: Agency Agreement (Titan Medical Inc)
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:
(a) will advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts;
(b) will advise the Agent, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;
(ii) the institution, threatening or contemplation of any proceeding for any such purposes;
(iii) the issuance of by any Securities Regulator of any order, ruling, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Preliminary Prospectus or the Final Prospectus or for additional information, and will use its commercially reasonable efforts to prevent the issuance of any order referred to in subsection (i) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possible;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be is not a “reporting issuer”, will use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following the Closing Date;
(d) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is Common Shares are not listed on the CSE, the Corporation will use its commercially reasonable best efforts to maintain the listing of the Common Shares on the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, and any press release issued concerning the Offering shall include substantially the following language: “This press release does not constitute an offer to sell or a solicitation of an offer to sell any of the securities in the United States. The securities have not been and will not be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”) or any state securities laws and may not be offered to sold within the United States or to U.S. Persons unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available.” provided that any such review will be completed in a timely manner;
(f) during the distribution of the Offered Units, will not issue any press releases in the United States concerning the Offering; and
(fg) will use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus under the heading “Use of Proceeds”.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:
(a) will advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts;
(b) will advise the Agent, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;
(ii) the institution, threatening or contemplation of any proceeding for any such purposes;
(iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered UnitsShares) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Preliminary Prospectus or the Final Prospectus or for additional information, and will use its commercially reasonable efforts to prevent the issuance of any order referred to in (i) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possible;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be is not a “reporting issuer”, will use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following the Closing Date;
(d) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable best efforts to maintain the listing of the Common Shares on the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;
(e) will ensure that, during the distribution of the Offered UnitsShares, no press release will be issued in the United States by the Corporation will consult with concerning the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely mannerOffering; and
(f) will use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus under the heading “Use of Proceeds”.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Agent Underwriters that the Corporation:
(a) will advise the AgentUnderwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus and Final Prospectus (and any Supplementary Material Material) has been filed and receipts a Passport Receipt therefor have has been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent Underwriters of each such filing and copies of such receipts;
(b) will advise the AgentUnderwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the Preliminary Prospectus, the Amended Prospectus and Restated Preliminary Prospectus, the Final Prospectus (or any Supplementary Material);
(ii) the institutionsuspension of the qualification for distribution of the Offered Securities, threatening the Over-Allotment Option or contemplation of any proceeding for any such purposes;
(iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading Broker Warrants in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator Qualifying Provinces or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iviii) any requests made by any Canadian Securities Regulators for amending or supplementing the Preliminary Prospectus or the Final Prospectus (or any Supplementary Material) or for additional information, and will use its commercially reasonable best efforts to prevent the issuance of any order referred to in (i) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possible;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws of in each of the Qualifying Jurisdictions to Provinces which have such a concept until the date which that is at least 24 months following the Initial Closing Date, provided that the foregoing requirement is subject to the obligations of the directors to comply with their fiduciary duties to the Corporation;
(d) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable best efforts to maintain the listing of the Common Shares on the CSE TSX or such other recognized stock exchange or quotation system as the Agent Underwriters may approve, acting reasonably, to the date that is for a period of at least 24 months following the Closing Date so long as Date, provided that the Corporation meets foregoing requirement is subject to the minimum listing requirements obligations of the CSE or such other exchange or quotation systemdirectors to comply with their fiduciary duties to the Corporation;
(e) during the distribution of the Offered Unitsprovided that it receives payment therefor, will ensure that at each applicable Closing Time, the Corporation will consult with Unit Shares shall be duly and validly issued as fully paid and non-assessable Common Shares, that the Agent Warrants and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review Broker Warrants will be completed in a timely manner; andduly and validly created and issued and that the Warrant Shares, Broker Unit Shares, Broker Unit Warrants and Broker Shares have been created and reserved for issuance;
(f) will use the net proceeds of the Offering contemplated herein in a manner materially consistent with the manner specified in the manner and subject to the qualifications described in the Final Prospectus under the heading “Use of Proceeds”, subject to any reallocation of funds which, in the exercise of the good faith business judgement of the management and board of directors of the Corporation, may be necessary for sound business reasons; and
(g) will have, at or prior to each applicable Closing Time, fulfilled or caused to be fulfilled, each of the conditions set out in Section 11 hereof.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Agent Underwriter that the Corporation:
(a) will advise the AgentUnderwriter, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System Mutual Reliance Procedures and will provide evidence reasonably satisfactory to the Agent Underwriter of each such filing and copies of such receipts;
(b) will advise the AgentUnderwriter, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;
(ii) the institution, threatening or contemplation of any proceeding for any such purposes;
(iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Preliminary Prospectus or the Final Prospectus or for additional information, and will use its commercially reasonable efforts to prevent the issuance of any order referred to in (i) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possible;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be is not a “reporting issuer”, will use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws of each of the Qualifying Jurisdictions which have such a concept to the date which is 24 months two years following the Closing Date;
(d) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on either AMEX or the CSETSX, as the Corporation case may be, will use its commercially reasonable best efforts to maintain the listing of the Common Shares on the CSE TSX, AMEX or such other recognized stock exchange or quotation system as the Agent Underwriter may approve, acting reasonably, to the date that is 24 months two years following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE TSX, AMEX or such other exchange or quotation system;
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and
(fe) will use the net proceeds of the Offering offering of Units contemplated herein in the manner and subject to the qualifications qualification described in the Prospectus under the heading “Use of Proceeds”.
Appears in 1 contract
Samples: Underwriting and Agency Agreement (Adherex Technologies Inc)
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:
(a) will advise shall prior to the Closing Time, allow the Agent (and its counsel and consultants) to conduct all due diligence which the Agent may reasonably require or consider necessary or appropriate in order to fulfill the Agent, promptly after receiving notice thereof, of ’s obligations as registrants to complete the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and Offering as provided herein. The Corporation will provide evidence reasonably satisfactory to the Agent (and its counsel and consultants) reasonable access to the Corporation’s properties (if any), senior management personnel and corporate, financial and other records, for the purposes of conducting such due diligence. Without limiting the scope of the due diligence inquiry the Agent (or its counsel and consultants) may conduct, the Corporation shall also make available its directors, senior management and counsel to answer any questions which the Agent may have and to participate in one or more due diligence sessions to be held prior to Closing (collectively, the “Due Diligence Session”). The Agent shall distribute a list of written questions in advance of each such filing and copies of such receiptsDue Diligence Session;
(b) will shall forthwith advise the AgentAgent of, promptly after receiving notice or obtaining knowledge thereofand provide the Agent with copies of, ofany written communications relating to:
(i) the issuance by any Canadian Securities Regulators securities regulatory authority, including the TSX, of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;Prospectus Amendment or any cease trading or stop order or any halt in trading relating to the Common Shares or the institution or threat of any proceedings for that purpose; and
(ii) the institution, threatening or contemplation receipt of any proceeding for material communication from any such purposessecurities regulatory authority, including the TSX, or other authority relating to the Prospectus or any Prospectus Amendment or the Offering;
(iiic) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Final Prospectus or for additional information, and will shall use its commercially reasonable best efforts to prevent the issuance of any order referred to in (ib)(i) above and, if any such order is issued, shall forthwith take all reasonable steps which it is able to take and which may be necessary or desirable in order to obtain the withdrawal thereof as quickly soon as possibleis reasonably practicable;
(cd) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will shall use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Applicable Securities Laws of each of the Qualifying Canadian Selling Jurisdictions to for as long as any Warrants remain outstanding, other than in a business combination or similar transaction where all the date outstanding securities of the Corporation have been exchanged for cash or the securities of another issuer which is 24 months following the Closing Datea reporting issuer under any Applicable Securities Laws;
(de) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will shall use its commercially reasonable best efforts to maintain the listing of the Common Shares and the Warrants on the CSE TSX or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so for as long as any Warrants remain outstanding, other than in a business combination or similar transaction where all the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases outstanding securities of the Corporation have been exchanged for review by cash or the Agent and the Agent's counsel prior to issuance, provided that securities of another issuer which is a reporting issuer under any such review will be completed in a timely manner; andApplicable Securities Laws;
(f) shall use its commercially reasonable efforts to ensure that the Unit Shares, the Warrants and the Warrant Shares (including for greater certainty any Common Shares underlying the Compensation Warrants) will be conditionally approved for listing on the TSX upon their issue;
(g) shall use the net proceeds of the Offering contemplated herein in the manner and subject to the qualifications described in the Prospectus Supplement under the heading “Use of Proceeds”; and
(h) shall, as soon as practicable, use its commercially reasonable efforts to receive all necessary consents to the transactions contemplated herein.
Appears in 1 contract
Samples: Agency Agreement (Titan Medical Inc)
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:
(a) will advise shall prior to the Closing Time (and the Agent’s Option Closing Time, promptly after receiving notice thereofas applicable), of allow the time when Agent (and its counsel and consultants) to conduct all due diligence which the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant Agent may reasonably require or consider necessary or appropriate in order to fulfill the Passport System and Agent’s obligations as registrants to complete the Offering as provided herein. The Corporation will provide evidence reasonably satisfactory to the Agent (and its counsel and consultants) reasonable access to the Corporation’s properties (if any), senior management personnel and corporate, financial and other records, for the purposes of each conducting such filing due diligence. Without limiting the scope of the due diligence inquiry the Agent (or its counsel and copies consultants) may conduct, the Corporation shall also make available its directors, senior management and counsel to answer any questions which the Agent may have and to participate in one or more due diligence sessions to be held prior to Closing (or the Agent’s Option Closing, as applicable) (the “Due Diligence Session”). The Agent shall distribute a list of written questions to be answered in advance of such receiptsDue Diligence Session and the Corporation shall provide written responses to such questions, and shall use its reasonable commercial efforts to have its legal counsel provide written responses to such questions, in advance of the Due Diligence Session;
(b) will shall forthwith advise the AgentAgent of, promptly after receiving notice or obtaining knowledge thereofand provide it with copies of, ofany written communications relating to:
(i) the issuance by any Canadian Securities Regulators securities regulatory authority, including the TSX, of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Supplementary Material;Prospectus Amendment or any cease trading or stop order or any halt in trading relating to the Common Shares or the institution or threat of any proceedings for that purpose; and
(ii) the institution, threatening or contemplation receipt of any proceeding for material communication from any such purposessecurities regulatory authority, including the TSX, or other authority relating to the Prospectus or any Prospectus Amendment or the Offering;
(iiic) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Final Prospectus or for additional information, and will shall use its commercially reasonable best efforts to prevent the issuance of any order referred to in (ib)(i) above and, if any such order is issued, shall forthwith take all reasonable steps which it is able to take and which may be necessary or desirable in order to obtain the withdrawal thereof as quickly soon as possibleis reasonably practicable;
(cd) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will shall use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Applicable Securities Laws of each of the Qualifying Canadian Selling Jurisdictions to for as long as any Warrants or Additional Warrants remain outstanding, other than in a business combination or similar transaction where all the date outstanding securities of the Corporation have been exchanged for cash or the securities of another issuer which is 24 months following the Closing Datea reporting issuer under any Applicable Securities Laws;
(de) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will shall use its commercially reasonable best efforts to maintain the listing of the Common Shares and the Warrants on the CSE TSX or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so for as long as any Warrants or Additional Warrants remain outstanding, other than in a business combination or similar transaction where all the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases outstanding securities of the Corporation have been exchanged for review by cash or the Agent and the Agent's counsel prior to issuance, provided that securities of another issuer which is a reporting issuer under any such review will be completed in a timely manner; andApplicable Securities Laws;
(f) shall use its commercially reasonable efforts to ensure that the Unit Shares, the Warrants and the Warrant Shares (including for greater certainty any Unit Shares, Warrants and Warrant Shares underlying the Compensation Warrants) will be conditionally approved for listing on the TSX upon their issue;
(g) shall use the net proceeds of the Offering offering of the Offered Units contemplated herein in the manner and subject to the qualifications described in the Prospectus Supplement under the heading “Use of Proceeds”; and
(h) shall, as soon as practicable, use its commercially reasonable efforts to receive all necessary consents to the transactions contemplated herein.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. (1) The Corporation hereby covenants to and agrees with the Agent that the CorporationUnderwriters that:
(a) the Corporation will advise the AgentUnderwriters, promptly after receiving notice thereof, of the time when the Final each Offering Document or Issuer Free Writing Prospectus and any Supplementary Material has been filed and receipts therefor have filed, when any Prospectus Receipt has been obtained pursuant to and when the Passport System Registration Statement becomes effective, and will provide evidence reasonably satisfactory to the Agent Underwriters of each such filing and copies a copy of each such receiptsProspectus Receipt;
(b) between the date hereof and the date of completion of the Distribution of the Offered Shares, the Corporation will advise the AgentUnderwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators or the SEC of any order suspending or preventing the use of any of the Preliminary Offering Documents or any Issuer Free Writing Prospectus, including without limitation the Amended and Restated Preliminary Prospectusissuance by the SEC of any stop order suspending the effectiveness of the Registration Statement, or, to the knowledge of the Corporation, the Final Prospectus or threatening of any Supplementary Materialsuch order;
(ii) the institutionissuance by any Canadian Securities Regulators, threatening the SEC, the TSX or contemplation the NYSE American of any proceeding for any such purposes;
(iii) any order, ruling, or determination order having the effect of ceasing or suspending the sale Distribution of the Common Shares or ceasing the trading in any securities of the Corporation (including Corporation, or of the Offered Units) has been issued by any Securities Regulator or institution or, to the institutionknowledge of the Corporation, threatening or contemplation of any proceeding for any such purposespurpose; or
(iviii) any requests made by any Canadian Securities Regulators or the SEC for amending or supplementing any of the Final Offering Documents or any Issuer Free Writing Prospectus or for additional information, ; and the Corporation will use its commercially reasonable efforts to prevent the issuance of any order referred to in subparagraph (ib)(i) above or subparagraph (b)(ii) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possibleat the earliest possible time;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “reporting issuer”, will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or obtain the equivalent thereof) not in default conditional listing of the requirements of Offered Shares on the Securities Laws of each of TSX by the Qualifying Jurisdictions Closing Time, subject only to the date which is 24 months following official notice of issuance, and the Corporation will use commercially reasonable to have the Offered Shares listed and admitted and authorized for trading on the NYSE American by the Closing DateTime;
(d) except to as soon as practicable, but in any event not later than eighteen months after the extent effective date of the Registration Statement (as defined in Rule 158(c) under the U.S. Securities Act), the Corporation participates in a merger will make generally available to its security holders an earnings statement or business combination transaction which the Corporation’s board of directors determines is in the best interest statements of the Corporation and following its Subsidiaries which will satisfy the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing provisions of Section 11(a) of the Common Shares on U.S. Securities Act and Rule 158 under the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;U.S. Securities Act; and
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and
(f) will use the net proceeds of from the Offering contemplated herein in the manner and subject to the qualifications as described in the Prospectus Pricing Disclosure Package and the Prospectuses.
(2) Prior to the completion of the Distribution of the Offered Shares, the Corporation will file all documents required to be filed with or furnished to the Canadian Securities Regulators and the SEC pursuant to Applicable Securities Laws.
(3) Except as contemplated by this Agreement, the Corporation will not, without the prior written consent of the Lead Underwriters (not to be unreasonably withheld) on behalf of the Underwriters, directly or indirectly issue, offer, pledge, sell, contract to sell, contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer, lend or dispose of directly or indirectly, any Common Shares or securities or other financial instruments convertible into or having the right to acquire Common Shares or enter into any agreement or arrangement under which the Corporation would acquire or transfer to another, in whole or in part, any of the economic consequences of ownership of Common Shares, whether that agreement or arrangement may be settled by the delivery of Common Shares or other securities or cash, or agree to become bound to do so, or disclose to the public any intention to do so, during the period from the date hereof and ending 90 days following the Closing Date; provided that, notwithstanding the foregoing, the Corporation may: (i) complete the Flow-Through Private Placement; (ii) pursuant to the terms of the Corporation’s equity incentive plans, grant an aggregate 175,000 stock options, 100,000 performance-based share units and 70,000 restricted share units on or about March 31, 2023 in connection with the Corporation’s annual equity incentive compensation payments to certain management and employees of the Corporation; (iii) grant deferred share units of the Corporation to certain directors of the Corporation on or about March 31, 2023 pursuant to an existing commitment; and (iv) issue Common Shares issuable upon the conversion, exchange or exercise of convertible or exchangeable securities or the exercise of warrants or options outstanding on the date hereof. In addition, the Corporation shall not file a prospectus under Canadian Securities Laws or a registration statement under the heading “Use of Proceeds”U.S. Securities Act in connection with any transaction by the Corporation or any person that is prohibited pursuant to the foregoing, except as pursuant to the Offering and for registration statements on Form S-8 relating to employee benefit plans.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants to the Agent that the Corporation:Corporation:
(a) will advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts;
(b) will advise the Agent, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus Prospectus, or any Supplementary Material;Material;
(ii) the institution, threatening threatening, or contemplation of any proceeding for any such purposes;
(iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Offered Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Final Prospectus Supplementary Material or for additional information, and will use its commercially reasonable efforts to prevent the issuance of any order referred to in (i7(b)(i) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possible;possible;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s 's board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position to apply to Canadian Securities Regulators to cease to be a “"reporting issuer”", will use its commercially reasonable efforts to maintain its status as a “"reporting issuer” " (or the equivalent thereof) not in default of the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following the Closing Date;
(d) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s 's board of directors determines is in the best interest of the Corporation and following which the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing of the Common Shares on the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and;
(f) will use the net proceeds of the Offering contemplated herein substantially in the manner and subject to the qualifications described in the Prospectus under the heading “"Use of Proceeds”";
(g) duly execute and deliver, on or before the Closing Time, the certificates evidencing the Warrants, Corporate Finance Fee Unit Warrants, Agent's Commission Unit Warrants (if any), and Compensation Warrants, and the Subscription and Renunciation Agreements and the certificates evidencing the FT Shares, if any, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation at or prior to the Closing Time, as applicable;
(h) will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for common shares of the Corporation, other than issuances: (i) under existing director or employee stock options, bonus or purchase plans or similar share compensation arrangements as detailed in the Corporation's most recently-filed management discussion and analysis; (ii) under director or employee stock options or bonuses granted subsequently in accordance with regulatory approval; (iii) upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; or (iv) under its existing mineral property agreements, from the date hereof and continuing for a period of 120 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld;
(i) will incur (or be deemed to have incurred) Qualifying Expenditures in an amount equal to the Commitment Amount, on or after the Closing Date and on or before the Termination Date in accordance with this Agreement and the Subscription and Renunciation Agreements and agrees to renounce to the FT Purchasers, with an effective date no later than December 31, 2022, pursuant to subsection 66(12.6) of the Tax Act and in respect of Qualifying Expenditures incurred by the Corporation in 2023, in conjunction with subsection 66(12.66) of the Tax Act, Qualifying Expenditures incurred (or deemed to be incurred) by the Corporation on or after the Closing Date and on or before the Termination Date, in an amount equal to the Commitment Amount;
(j) will, unless required to do so pursuant to subsection 66(12.73) of the Tax Act, not reduce the amount renounced to the FT Purchasers pursuant to subsections 66(12.6) of the Tax Act. If the Corporation receives, or becomes entitled to receive, or may reasonably be expected to receive, any assistance which is described in the definition of "assistance" in subsection 66(15) of the Tax Act and the receipt of or entitlement or reasonable expectation to receive such assistance has or will have the effect of reducing the amount of Qualifying Expenditures validly renounced to the FT Purchasers, the Corporation will incur (or be deemed to have incurred) additional Qualifying Expenditures using funds from sources other than the Commitment Amount in an amount equal to such assistance, such that the aggregate Qualifying Expenditures renounced to the applicable FT Purchasers effective no later than December 31, 2022, pursuant to the terms of this Agreement and the Subscription and Renunciation Agreements will not be less than nor exceed the Commitment Amount;
(k) will not, subject to the provisions of subsection 66(12.67) of the Tax Act, act in a manner which impairs its ability to renounce Qualifying Expenditures to the FT Purchasers in an amount equal to the Commitment Amount;
(l) if the Corporation does not renounce to the FT Purchasers effective on or before December 31, 2022, Qualifying Expenditures equal to the Commitment Amount the Corporation will indemnify and hold harmless the FT Purchasers and each of the partners thereof if the FT Purchasers are a partnership or a limited partnership (for the purposes of this paragraph each an "Indemnified Person") as to, and pay to the Indemnified Person on or before the 20th business day following the date the amount is determined, an amount equal to the amount of any tax (within the meaning of subparagraph (c) of the definition of "excluded obligation" at subsection 6202.1(5) of the regulations to the Tax Act) payable under the Tax Act (and under the corresponding provincial legislation) by any Indemnified Person as a consequence of such failure. In the event that the amount renounced by the Corporation to the FT Purchasers is reduced pursuant to subsection 66(12.73) of the Tax Act, the Corporation shall indemnify and hold harmless each Indemnified Person as to, and pay to the Indemnified Person on or before the 20th business day following the date the amount is determined, an amount equal to the amount of any tax (within the meaning of subparagraph (c) of the definition of "excluded obligation" at subsection 6202.1(5) of the regulations to the Tax Act) payable under the Tax Act (and under the corresponding provincial legislation) by the Indemnified Person as a consequence of such reduction. This indemnity is in addition to and not in derogation of any other recourse, rights or remedies the FT Purchasers may have against the Corporation. For certainty, the foregoing indemnity shall have no force or effect and the FT Purchasers shall not have any recourse or rights of action to the extent that such indemnity would otherwise cause the FT Shares to be "prescribed shares" within the meaning of Section 6202.1 of the regulations to the Tax Act;
(m) will file with the CRA, within the time prescribed by subsection 66(12.68) of the Tax Act, the forms prescribed for the purposes of such legislation together with a copy of the Subscription and Renunciation Agreements or any "selling instrument" contemplated by such legislation and shall forthwith following such filing provide to the FT Purchasers a copy of such form certified by an officer of the Corporation. The Corporation shall timely file with the CRA and with any applicable provincial tax authority any return required to be filed under Part XII.6 of the Tax Act (or any corresponding provision of applicable provincial law) in respect of the particular year, and will pay any tax or other amount owing in respect of that return on a timely basis;
(n) will deliver to the FT Purchasers, before March 1, 2023, the relevant Prescribed Forms (including form T101), fully completed and executed, renouncing to the FT Purchasers, Qualifying Expenditures in an amount equal to the Commitment Amount with an effective date of no later than December 31, 2022, and such delivery shall constitute the authorization of the Corporation to the FT Purchasers to file such Prescribed Forms with the relevant taxation authorities;
(o) will incur and renounce Qualifying Expenditures pursuant to the Subscription and Renunciation Agreements and all other agreements with other persons providing for the issue of shares which are "flow-through shares" as defined in subsection 66(15) of the Tax Act entered into by the Corporation on the Closing Date (collectively, the "Other Agreements") before incurring and renouncing CEE pursuant to any other agreement which the Corporation may subsequently enter into after the Closing Date with any person with respect to the issue of FT Xxxxxx. If the Corporation is required under the Tax Act or otherwise to reduce Qualifying Expenditures previously renounced to the FT Purchasers pursuant to the Subscription and Renunciation Agreements and unless any purchaser adversely affected otherwise agrees, the reduction shall be made pro rata by the Commitment Amount allocable to each FT Purchaser in relation to the aggregate Commitment Amount under the Subscription and Renunciation Agreements and the Other Agreements only after it has first reduced to the extent possible all Qualifying Expenditures renounced to persons (other than the FT Purchasers) under any agreements relating to shares which are "flow-through shares" as defined in subsection 66(15) of the Tax Act entered into after the Closing Date;
(p) upon the Corporation becoming aware of the fact that an amount purportedly renounced pursuant to the Subscription and Renunciation Agreements exceeds the amount that it is entitled to renounce under the Tax Act, will notify the FT Purchasers and comply with subsection 66(12.73) of the Tax Act, including the filing with the CRA of the statements contemplated therein, a copy of which will be sent concurrently to the FT Purchasers;
(q) will not enter, without the prior written consent of the Agent, into any other agreement which would prevent or restrict its ability to renounce Qualifying Expenditures to the FT Purchasers in the amount of the Commitment Amount; and
(r) will maintain proper, complete and accurate accounting books and records relating to the Commitment Amount, the Qualifying Expenditures, the amounts renounced to the FT Purchasers under this Agreement and the Subscription and Renunciation Agreements and all transactions relating to the Qualifying Expenditures. The Corporation shall retain all such books and records as may be required to support the renunciation of Qualifying Expenditures contemplated by this Agreement and the Subscription and Renunciation Agreements and, upon reasonable notice, shall make such books and records available for inspection and audit by or on behalf of the FT Purchasers, at the FT Purchaser's sole expense.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. (1) The Corporation hereby covenants to and agrees with the Agent that the CorporationUnderwriters that:
(a) the Corporation will advise the AgentUnderwriters, promptly after receiving notice thereof, of the time when the Final each Offering Document or Issuer Free Writing Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System filed, and will provide evidence reasonably satisfactory to the Agent Underwriters of each such filing and copies a copy of each such receiptsPassport Prospectus Receipt;
(b) between the date hereof and the date of completion of the Distribution of the Offered Shares, the Corporation will advise the AgentUnderwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators Qualifying Authorities or the SEC of any order suspending or preventing the use of any of the Preliminary Offering Documents or any Issuer Free Writing Prospectus, including without limitation the Amended and Restated Preliminary Prospectusissuance by the SEC of any stop order suspending the effectiveness of the Registration Statement, or, to the knowledge of the Corporation, the Final Prospectus or threatening of any Supplementary Materialsuch order;
(ii) the institutionissuance by any Qualifying Authorities, threatening the SEC, the TSX or contemplation the NYSE of any proceeding for any such purposes;
(iii) any order, ruling, or determination order having the effect of ceasing or suspending the sale Distribution of the Common Shares or ceasing the trading in any securities of the Corporation (including Corporation, or of the Offered Units) has been issued by any Securities Regulator or institution or, to the institutionknowledge of the Corporation, threatening or contemplation of any proceeding for any such purposespurpose; or
(iviii) any requests made by any Canadian Securities Regulators Qualifying Authorities or the SEC for amending or supplementing any of the Final Offering Documents or any Issuer Free Writing Prospectus or for additional information, ; and the Corporation will use its commercially reasonable commercial efforts to prevent the issuance of any order referred to in subparagraph (ib)(i) above or subparagraph (b)(ii) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possibleat the earliest possible time;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position use its reasonable commercial efforts to apply obtain the conditional listing of the Offered Shares on the TSX by the Closing Time, subject only to Canadian Securities Regulators to cease to be a “reporting issuer”the official notice of issuance, and the Corporation will use its commercially reasonable commercial efforts to maintain its status as a “reporting issuer” (or have the equivalent thereof) not in default of Offered Shares listed and admitted and authorized for trading on the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following NYSE by the Closing DateTime;
(d) except as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), the Corporation will make generally available to its security holders and to the extent the Corporation participates in a merger Underwriters an earnings statement or business combination transaction which the Corporation’s board of directors determines is in the best interest statements of the Corporation and following its Subsidiaries which will satisfy the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing provisions of Section 11(a) of the Common Shares on Securities Act and Rule 158 under the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;Securities Act; and
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and
(f) will use the net proceeds from the Offering as described in the Preliminary Prospectuses and the Final Prospectuses.
(2) Prior to the completion of the Distribution of the Offered Shares, the Corporation will file, within the time periods specified by the Qualifying Authorities and the SEC (as applicable), all documents required to be filed with or furnished to the Qualifying Authorities and the SEC pursuant to Applicable Securities Laws.
(3) The Corporation agrees not to issue or sell any common shares of the Corporation or financial instruments convertible or exercisable into common shares of the Corporation or announce any intention to do so until the date which is 90 days after the Closing Date (the “Lock-Up Period”) without the prior written consent of the Underwriters, such consent not to be unreasonably withheld or delayed, except, as applicable in the case of the Corporation or the applicable individual, in conjunction with: (i) the grant or exercise of stock options, the vesting of restricted share units and other similar issuances, in each case pursuant to the share incentive plan of the Corporation and other share compensation arrangements; (ii) the exercise of outstanding warrants; (iii) obligations of the Corporation in respect of existing mineral property agreements; (iv) the Over-Allotment Option; and (v) the issuance of securities by the Corporation in connection with property or share acquisitions in the normal course of business; and (vi) the issuance of the flow-through shares pursuant to the concurrent private placement or shares with respect to the Snowstorm transaction. The Corporation also agrees that during the Lock-Up Period, the Corporation will not file any registration statement, preliminary prospectus or prospectus, or any amendment or supplement thereto, under the Securities Act for any transaction which registers, or offers for sale, common shares or any securities convertible into or exercisable or exchangeable for common shares except where subject to an existing contractual obligation of the Corporation or in accordance with the exception in (iv) of this paragraph.
(4) The Corporation agrees that it will use its reasonable efforts to restrict its officers and directors from selling any securities in the Corporation on or prior to the closing of the Offering contemplated herein without the prior written consent of the Co-Lead Underwriters, such consent not to be unreasonably withheld or delayed, and except for officers whose restricted share units vest during such period or in the manner and subject to five week period before the qualifications described date of this letter agreement, if any, or in connection with the Prospectus under exercise of stock options by directors or officers of the heading “Use of Proceeds”Corporation during such period.
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Covenants of the Corporation. (1) The Corporation hereby covenants to and agrees with the Agent that the CorporationUnderwriters that:
(a) the Corporation will advise the AgentUnderwriters, promptly after receiving notice thereof, of the time when the Final each Offering Document or Issuer Free Writing Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System filed, and will provide evidence reasonably satisfactory to the Agent Underwriters of each such filing and copies of such receiptsfiling;
(b) between the date hereof and the date of completion of the Distribution of the Offered Shares, the Corporation will advise the AgentUnderwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulators or the SEC of any order suspending or preventing the use of any of the Preliminary Offering Documents or any Issuer Free Writing Prospectus, including without limitation the Amended and Restated Preliminary Prospectusissuance by the SEC of any stop order suspending the effectiveness of the Registration Statement, or, to the knowledge of the Corporation, the Final Prospectus or threatening of any Supplementary Materialsuch order;
(ii) the institutionissuance by any Canadian Securities Regulators, threatening the SEC, the TSX or contemplation the NYSE MKT of any proceeding for any such purposes;
(iii) any order, ruling, or determination order having the effect of ceasing or suspending the sale Distribution of the Common Shares or ceasing the trading in any securities of the Corporation (including Corporation, or of the Offered Units) has been issued by any Securities Regulator or institution or, to the institutionknowledge of the Corporation, threatening or contemplation of any proceeding for any such purposespurpose; or
(iviii) any requests made by any Canadian Securities Regulators or the SEC for amending or supplementing any of the Final Offering Documents or any Issuer Free Writing Prospectus or for additional information, ; and the Corporation will use its commercially reasonable best efforts to prevent the issuance of any order referred to in subparagraph (ib)(i) above or subparagraph (b)(ii) above and, if any such order is issued, to obtain the withdrawal thereof as quickly as possibleat the earliest possible time;
(c) except to the extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the Corporation and following which the Corporation will be in a position use its best efforts to apply obtain the conditional listing of the Offered Shares on the TSX by the Closing Time, subject only to Canadian Securities Regulators to cease to be a “reporting issuer”the official notice of issuance, and the Corporation will use its commercially reasonable best efforts to maintain its status as a “reporting issuer” (or have the equivalent thereof) not in default of Offered Shares listed and admitted and authorized for trading on the requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is 24 months following NYSE MKT by the Closing DateTime;
(d) except to as soon as practicable, but in any event not later than eighteen months after the extent effective date of the Registration Statement (as defined in Rule 158(c) under the U.S. Securities Act), the Corporation participates in a merger will make generally available to its security holders an earnings statement or business combination transaction which the Corporation’s board of directors determines is in the best interest statements of the Corporation and following its subsidiaries which will satisfy the Corporation is not listed on the CSE, the Corporation will use its commercially reasonable efforts to maintain the listing provisions of Section 11(a) of the Common Shares on U.S. Securities Act and Rule 158 under the CSE or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is 24 months following the Closing Date so long as the Corporation meets the minimum listing requirements of the CSE or such other exchange or quotation system;U.S. Securities Act; and
(e) during the distribution of the Offered Units, the Corporation will consult with the Agent and promptly provide to the Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, provided that any such review will be completed in a timely manner; and
(f) will use the net proceeds of from the Offering contemplated herein in the manner and subject to the qualifications as described in the Prospectus Pricing Disclosure Package and the Prospectuses.
(2) Prior to the completion of the Distribution of the Offered Shares, the Corporation will file all documents required to be filed with or furnished to the Canadian Securities Regulators and the SEC pursuant to Applicable Securities Laws.
(3) Except as contemplated by this Agreement, the Corporation will not, without the prior written consent of Scotia Capital (not to be unreasonably withheld) on behalf of the Underwriters, directly or indirectly issue, offer, pledge, sell, contract to sell, contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer, lend or dispose of directly or indirectly, any Common Shares or securities or other financial instruments convertible into or having the right to acquire Common Shares or enter into any agreement or arrangement under which the Corporation would acquire or transfer to another, in whole or in part, any of the economic consequences of ownership of Common Shares, whether that agreement or arrangement may be settled by the delivery of Common Shares or other securities or cash, or agree to become bound to do so, or disclose to the public any intention to do so, during the period from the date hereof and ending 90 days following the Closing Date; provided that, notwithstanding the foregoing, the Corporation may (i) issue Common Shares or securities convertible into or exchangeable for Common Shares pursuant to any equity incentive plan, stock ownership or purchase plan, dividend reinvestment plan or other equity plan in effect on the date hereof and (ii) issue Common Shares issuable upon the conversion, exchange or exercise of convertible or exchangeable securities or the exercise of warrants or options outstanding on the date hereof. In addition, the Corporation shall not file a prospectus under Canadian Securities Laws or a registration statement under the heading “Use of Proceeds”U.S. Securities Act in connection with any transaction by the Corporation or any person that is prohibited pursuant to the foregoing, except as pursuant to the Offering and for registration statements on Form S-8 relating to employee benefit plans.
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