Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows: (a) the Corporation covenants and agrees with the Holder that it shall repay all of the Principal and any interest thereon to the Holder in accordance with the terms hereof; (b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same; (c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange; (d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and (e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunder.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsUnderwriters that:
(a) prior to the Closing Date and prior to the Qualification Date (in connection with the filing of the Prospectuses and any Supplementary Material), the Corporation shall allow the Underwriters the opportunity to conduct required due diligence and to obtain, acting reasonably, satisfactory results from such due diligence and in particular, the Corporation shall allow the Underwriters and Underwriters' Counsel to conduct all due diligence which the Underwriters may reasonably require in order to confirm the Documents and the Public Record are accurate, complete and current in all material respects and to fulfill the Underwriters' obligations as a registrant and, in this regard, without limiting the scope of the due diligence inquiries that the Underwriters may conduct, the Corporation shall make available its senior management, directors and auditors to participate in one or more due diligence sessions (the "Due Diligence Sessions") to answer in person any questions that the Underwriters may have, the first such Due Diligence Session to be held prior to the Closing Date, and the Underwriters shall distribute a list of written questions to be answered in advance of such Due Diligence Sessions and the Corporation shall provide oral responses to such questions;
(b) if any of the facts or information underlying or supporting the statement provided in the Corporation's Due Diligence Session Responses have changed prior to the Qualification Date, the Corporation shall provide the Underwriters with prompt notice of the particulars of any such changes;
(c) it will comply with all the obligations to be performed by it, and all of its covenants and agrees agreements, under and pursuant to the Transaction Agreements;
(d) during the period commencing on the date of this Agreement and ending on the Qualification Date, it will promptly provide to the Underwriters, for review by the Underwriters and Underwriters' Counsel, prior to filing or issuance of the same, any press release or material change report related to the Offering and any press release issued by the Corporation concerning the Special Warrants or the Underlying Securities is to include the following or substantially similar legend: "NOT FOR DISTRIBUTION TO UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES." and applicable legends required under Rule 135e under the U.S. Securities Act;
(e) during the period commencing on the date of this Agreement and ending at the Closing Time, promptly notify the Underwriters in writing of any of the representations or warranties made by the Corporation in this Agreement being no longer true and correct in any material respect;
(f) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly inform the Underwriters of the full particulars of any material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets; provided, however, that if the Corporation is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 5(f) has occurred, the Corporation shall promptly inform the Underwriters of the full particulars of the occurrence giving rise to the uncertainty and shall consult with the Holder that it shall repay all Underwriters as to whether the occurrence is of such a nature;
(g) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly inform the Underwriters of the Principal and receipt by the Corporation of (i) any interest thereon communication of a material nature from any Securities Regulator or similar regulatory authority, any stock exchange or any other Governmental Authority relating to the Holder Corporation or the distribution of the Special Warrants, and (ii) the issuance by any Securities Regulator or similar regulatory authority, any stock exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose;
(h) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters and Underwriters' Counsel with the Canadian Securities Laws of the Qualifying Provinces in which it is then a reporting issuer with respect to any material change, change, occurrence or event of the nature referred to in Sections 5(f) and 5(g) above;
(i) the Corporation will use the net proceeds from the Offering to to support the growth of its business including the anticipated expansion of the data centers to utilize 100 megawatts of green energy, unless a reallocation of net proceeds is reasonably necessary, as well as for working capital and general corporate purposes;
(j) as soon as reasonably possible, and in any event by the Closing Date, the Corporation shall take all such steps as may reasonably be necessary to enable the Special Warrants to be offered for sale and sold on a private placement basis to Subscribers in the Selling Jurisdictions through the Underwriters in any of the Selling Jurisdictions in accordance with the terms hereof;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceAgreement; and
(ek) the Corporation agrees to pay Prospectuses (including the Documents) and any Supplementary Material will, as at the date thereof: (i) contain no misrepresentation; and (ii) constitute full, true and plain disclosure of all material facts relating to the Holder forthwith upon demand all costsCorporation and the Underlying Securities, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any as required under Canadian Securities Laws of the monies owing hereunderQualifying Provinces.
Appears in 1 contract
Samples: Underwriting Agreement (HIVE Digital Technologies Ltd.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) The Corporation agrees that all Capital Securities issued in exchange for Securities will upon issuance be duly and validly issued and, if applicable, fully paid and nonassessable. If any Capital Securities required to be exchanged for Securities hereunder require registration with or approval of any governmental authority under any Federal or State law or any national securities exchange, before such Capital Securities may be issued, the Corporation covenants shall use its best efforts to cause such Capital Securities to be duly registered or approved, as the case may be. The Corporation will pay any and agrees with the Holder all transfer, stamp or similar taxes that it shall repay all may be payable in respect of the Principal and any interest thereon to the Holder issue or delivery of Capital Securities in accordance with the terms hereof;exchange for Securities pursuant hereto.
(b) The Corporation unconditionally undertakes to sell or cause to be sold Capital Securities in each Secondary Offering (and to bear all expenses of each Secondary Offering, including underwriting discounts and commissions) at the times and in the manner required by this Indenture and the Securities of the series exchanged for Capital Securities unless all holders of the Securities of such series to be exchanged have duly elected to receive Capital Securities on the related Exchange Date, or the Designated Proceeds the Corporation shall give notice in writing forthwith has elected to apply to the Holder payment of Securities of such series are sufficient to satisfy the claims of all Cash Election Holders with respect to the principal amount of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of Securities held by such default and/or Event of Default and the steps taken to remedy the same;holders.
(c) The Corporation agrees, to the extent such agreement is enforceable under applicable law, to indemnify and hold harmless each holder of Securities for the account of whom Capital Securities are being offered and sold in connection with any Secondary Offering and any underwriter, agent or other similar person from and against any and all losses, claims, damages and liabilities resulting from or based upon any untrue statement or alleged untrue statement of any material fact contained in any notice of exchange, any offering memorandum or selling document or registration statement relating to the Secondary Offering, any preliminary prospectus or prospectus contained therein, or any amendment thereof or supplement thereto, or resulting from or based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or 77 70 resulting from the Corporation's failure to comply with Section 17.09(a); provided, however, that the Corporation shall use commercially reasonable efforts will not be liable in any such case to preserve the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement, alleged untrue statement, omission or alleged omission made therein (i) in reliance upon and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent in conformity with written information furnished to the Corporation from completing any transaction which would result by or on behalf of such holder specifically for use in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance connection with the requirements preparation thereof or (ii) because of applicable corporate such holder's failure to advise the Corporation in writing that any assumption described in Section 17.04(a)(10) is incorrect. In connection with any Secondary Offering, the Corporation agrees to obtain usual and securities laws appropriate indemnification of any holder for the account of whom Capital Securities are being offered and the rules and policies of the Exchange;sold in any Secondary Offering from any underwriter, agent or other similar person.
(d) subject to The Corporation will effect each Secondary Offering such that the express provisions hereof, closing of such Secondary Offering will occur on or before the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderrelevant Exchange Date.
Appears in 1 contract
Samples: Indenture (J P Morgan Chase & Co)
Covenants of the Corporation. The Corporation hereby covenants to the Agents and agrees the Subscribers, and acknowledges that each of them is relying on such covenants in connection with the Holder as followspurchase of the Offered Shares, that the Corporation shall:
(a) the Corporation covenants and agrees with the Holder maintain a system of internal accounting controls sufficient to provide reasonable assurance that it shall repay all of the Principal and any interest thereon to the Holder (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to monies and investments is permitted only in accordance with management’s general or specific authorization, and (iv) the terms hereofrecorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(b) at or prior to the Closing Time, satisfy all terms, conditions and covenants contained in this Agreement to be complied with or satisfied by the Corporation (unless waived by the Agents) in all material respects (except where already qualified by a materiality qualification, in which case the Corporation shall give notice have complied or satisfied in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameall respects);
(c) ensure that, at the Closing Time, the Offered Shares and the Corporate Finance Shares will be issued as fully paid and non-assessable shares in the capital of the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence on payment of the purchase price therefor and the listing of Agents’ Warrants have been duly created and issued and shall have attributes corresponding in all material respects to the Common Shares on the Exchange, provided that description thereof set forth in this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws Agreement and the rules and policies of the ExchangeAgents’ Warrant Certificates, as applicable;
(d) subject ensure that, upon due exercise of the Agents’ Warrants in accordance with their terms, the Agents’ Warrant Shares shall be duly issued as fully paid and non-assessable shares in the capital of the Corporation on payment of the purchase price therefor;
(e) obtain all Authorizations or filings as may be required under Applicable Securities Laws or otherwise necessary for the execution and delivery of and the performance by the Corporation of its obligations hereunder and under the Subscription Agreements, other than customary post-closing filings required to be submitted within the applicable time frame pursuant to Applicable Securities Laws;
(f) use the net proceeds of the Offering for the Corporation’s North American clinical expansion, drug development and general working capital purposes;
(g) prepare and file all forms, documents, notices and certificates within prescribed time periods required by Securities Regulators in connection with the issuance and sale of the Offered Shares by the Corporation, so as to permit and enable such securities to be lawfully distributed on an exempt basis in the Selling Jurisdictions and any other jurisdictions where Offered Shares are offered and sold in accordance with this Agreement and the Subscription Agreements;
(h) prior to the express provisions hereofClosing Date:
(i) promptly notify the Agents (and, if requested by the Agents, confirm such notification in writing) of any material change or change in a material fact (in either case, whether actual, anticipated, contemplated or threatened, financial or otherwise) or any event or development involving a prospective material change or a change in a material fact or any other material change in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital, ownership, control or management of the Corporation which would constitute a material change to, or a change in a material fact concerning, the Corporation or any other change which is of such a nature; and
(ii) promptly, and in any event, within any applicable time limitation period, comply with all applicable filings and other requirements under Applicable Securities Laws as a result of such change. During such period, the Corporation shall carry on and conduct its business in good faith discuss with the Agents as promptly as possible any fact or change in circumstances (actual, anticipated, contemplated or threatened, financial or otherwise) which is of such a proper and efficient manner and, subject nature that there is reasonable doubt as to whether notice in writing need be given to the express provisions hereof, it shall do or cause Agents pursuant to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderSection 5(h)(ii).
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsUnderwriters (on their own behalf and on behalf of the Purchasers) that:
(a) the Corporation covenants will use its commercially reasonable best efforts to ensure that the Offered Shares will be listed and agrees with posted for trading on the Holder that it shall repay all of TSX and on the Principal NYSE American upon their issue, subject to transfer restrictions under Applicable Securities Laws and any interest thereon to the Holder in accordance with the terms hereof;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall will use its commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the ExchangeTSX and on the NYSE American to the date which is twelve (12) months following the Closing Date, provided that this covenant Section 5(a) shall not prevent restrict the Corporation from completing any entering into an agreement with respect to, or effecting, a transaction pursuant to which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of are exchanged for: (i) cash; and/or (ii) securities of Corporation receive securities another person that is or as a result of an entity which is the transaction will be a reporting issuer (or equivalent thereof) and listed on a recognized Canadian stock exchange;
(b) in the event any person acting or U.S. stock exchange purporting to act for the Corporation establishes a claim from the Underwriters for any brokerage or cash, or the holders of securities of Corporation have approved the transaction agency fee in accordance connection with the requirements of applicable corporate transactions contemplated herein, the Corporation shall indemnify and securities laws hold harmless the Underwriters with respect thereto and with respect to all costs reasonably incurred in the rules and policies defence thereof unless such claim is made by a selling agent appointed by the Underwriters pursuant to subsection 3(b);
(c) the Corporation will use the proceeds of the ExchangeOffering to fund exploration and incur Qualified Expenditures on a property or properties located in Canada;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a will keep proper and efficient manner complete books, records and accounts in accordance with IFRS showing true and accurate records of all Qualified Expenditures of the Commitment Amount and, subject to upon the express provisions hereofreasonable request of the Underwriters and/or the Purchasers, it shall do make such books, records and accounts available for inspection by or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; andon behalf of the Underwriters and/or the Purchasers;
(e) the Corporation agrees will, as soon as practicable, use its commercially reasonable best efforts to pay receive all necessary consents to the Holder forthwith upon demand all coststransactions contemplated herein;
(f) the Corporation agrees, charges that until May 20, 2021, the Corporation will not, without the prior written consent of the Co-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 expenses ending 90 days following the Closing Date; provided that, notwithstanding the foregoing, the Corporation may (i) grant of options or other securities (including reasonable legal feesrestricted stock units and deferred stock units) ofin the normal course pursuant to the Corporation’s employee stock option plan or other equity compensation plans, and issue common shares upon the exercise of such options or incurred by vesting of such securities, (ii) issue equity securities pursuant to the Holder exercise, vesting or conversion, as the case may be, of any options, restricted stock units, warrants, special warrants or other convertible securities of the Corporation outstanding on the date hereof; and (iii) the issuance of equity securities in connection with one or more bona fide acquisitions by the realization Corporation. In addition, from the date hereof and ending 90 days following the Closing Date, the Corporation shall not, without the prior written consent of this Debenture the Co-Lead Underwriters (not to be unreasonably withheld) file a prospectus under Canadian Securities Laws or a registration statement under the Securities Act in connection with any transaction by the Corporation or any part person that is prohibited pursuant to the foregoing and for registration statements on Form S-8 relating to employee benefit plans;
(g) the Corporation will promptly notify the Underwriters in writing with full particulars, if, prior to the Closing Time, there shall occur any material change or change in a material fact (in either case, whether actual, anticipated, contemplated or threatened and other than a change or fact relating solely to the Underwriters or the Offering) or any event or development involving a prospective material change or a change in a material fact in any or all of the business, affairs, operations, assets (including information or data relating to the estimated value or book value of assets), liabilities (contingent or otherwise), capital, ownership, control, management or prospects of the Corporation or its Subsidiaries, taken as a whole;
(h) the Corporation will in good faith discuss with the Underwriters as promptly as possible any circumstance or event which is of such a nature that there is or ought reasonably to be consideration given as to whether there may be a material change or change in a material fact or other matter as described in the preceding paragraph;
(i) the Corporation shall incur and renounce Qualifying Expenditures to Purchasers under the Offering pro rata based on the number of Offered Shares issued or to be issued pursuant thereto before or concurrent with renouncing expenditures pursuant to any other agreement (a “Subsequent Agreement”) which the Corporation shall enter into after the Closing Date. The Corporation shall not, without the prior written consent of the Underwriters (which consent may not be unreasonably withheld) enter into any other agreement which would prevent or restrict its ability to renounce Qualified Expenditures to the Purchasers in the amount equal to the Commitment Amount. If the Corporation is required under the Tax Act or by the Minister of National Revenue to reduce Qualifying Expenditures previously renounced to Purchasers under the Offering, such reduction shall be made, to the extent possible, pro rata based on the number of Offered Shares only after it has first reduced, to the extent possible, all expenditures renounced to persons under Subsequent Agreements;
(j) it will file the necessary prescribed forms, within the time period prescribed by the Tax Act, so as to obtain a flow-through share issue identification number from the CRA in accordance with subsection 66(12.68) of the Tax Act, together with a copy of the Subscription Agreement and any “selling instrument”;
(k) the Corporation will maintain its status as a Principal Business Corporation until the end of the Expenditure Period;
(l) it will incur (or be deemed to incur), during the Expenditure Period, Qualified Expenditures in an amount not less than the Commitment Amount so as to enable the Corporation to renounce to the Purchasers (with an effective date not later than December 31, 2021, provided the Purchaser and any beneficial purchaser, and if a partnership, every member thereof, deals at arm’s length with the Corporation at all relevant times for purposes of the Tax Act ), Qualified Expenditures in an amount equal to the Commitment Amount;
(m) it will renounce to the Purchasers, (with an effective date not later than December 31, 2021, provided the Purchaser and any beneficial purchaser, and if a partnership, every member thereof, deals at arm’s length with the Corporation at all relevant times for purposes of the Tax Act ), Qualified Expenditures incurred (or deemed to be incurred) during the Expenditure Period in recovering an amount equal to the Commitment Amount;
(n) all Qualified Expenditures renounced to the Purchasers pursuant to this Agreement and the Subscription Agreements will be Qualified Expenditures incurred (or enforcing payment deemed to be incurred) by the Corporation that, but for the renunciation to the Purchasers, the Corporation would be entitled to deduct in computing its income for the purposes of Part I of the Tax Act if it had sufficient income and will not include any amount that has previously been renounced by the Corporation to the Purchasers or any other person;
(o) it will deliver to each Purchaser, at the applicable Purchaser’s address as set forth in the applicable Subscription Agreement, not later than March 1, 2022 (or such earlier date as may be specified in the applicable Subscription Agreement), a statement and all relevant prescribed forms (including T-101 forms) fully completed and executed setting forth the aggregate amount of Qualified Expenditures renounced to the Purchaser with an effective date not later than December 31, 2021 and shall timely file such forms with the relevant governmental authority;
(p) it will refrain from entering into transactions, taking deductions or making any tax elections or designations which would otherwise reduce its cumulative Canadian Exploration Expense to an extent which, or for any other reason that, would preclude a renunciation of Qualified Expenditures hereunder in an amount equal to the Commitment Amount effective on or before December 31, 2021 which could result in the Corporation or the Minister of National Revenue reducing the Qualified Expenditures renounced to the Purchasers;
(q) it will file within the times prescribed in the Tax Act on a timely basis all forms required under the Tax Act necessary to effectively renounce Qualified Expenditures in an amount equal to the Commitment Amount relating to each Purchaser(with an effective date not later than December 31, 2021, provided the Purchaser and any beneficial purchaser, and if a partnership, every member thereof, deals at arm’s length with the Corporation at all relevant times for purposes of the Tax Act );
(r) it will file, before March of the year following a particular year, any return required to be filed under Part XII.6 of the Tax Act in respect of the particular year, and shall pay any tax or other amount owing with respect to that return on a timely basis;
(s) it is not and will not become subject to the provisions of subsection 66(12.67) of the Tax Act in a manner which impairs its ability to renounce Qualified Expenditures to each Purchaser in an aggregate amount equal to the Commitment Amount;
(t) will ensure that the Qualified Expenditures to be renounced by the Corporation to the Purchasers of the Offered Shares will not include any amount that has previously been renounced by the Corporation to the Purchasers or to any other person;
(u) if the Corporation receives, or becomes entitled to receive, or may reasonably be expected to receive, any government assistance at any time which may reasonably be related to the Qualifying Expenditures, which could otherwise affect the amount that could be renounced pursuant to the terms of the Subscription Agreements, the Corporation will incur sufficient additional Qualifying Expenditures using funds from other sources in an amount at least equal to such assistance, such that the Corporation will ensure that the aggregate Qualifying Expenditures renounced to the Purchasers pursuant to the Subscription Agreements will not be less than nor exceed the Commitment Amount;
(v) it will not reduce the amount to be renounced to any Purchaser other than as required by the Minister of National Revenue pursuant to subsection 66(12.73) of the Tax Act, and if there is a reduction pursuant to subsection 66(12.73) of the Tax Act of an amount renounced to any Purchaser or any of the monies owing hereunderpartners thereof if such Purchaser is a partnership or a limited partnership (for the purposes of this subsection, each an “Indemnified Person”) pursuant to this Agreement, the Corporation shall indemnify the Indemnified Person as to, and pay in settlement therefor to the Indemnified Person, within 30 days of such reduction, an amount equal to the amount of any tax payable under the Tax Act (and any corresponding provincial legislation) by the Indemnified Person as a consequence of such reduction. The foregoing indemnity shall not derogate from any rights or remedies a Purchaser may have at common law with respect to liabilities other than those payable under the Tax Act and any corresponding legislation. The foregoing indemnity shall have no force or effect and the Purchasers shall not have any recourse or rights of action to the extent that such indemnity, recourse or rights of action would otherwise cause the Offered Shares to be Prescribed Shares. To the extent that any person entitled to be indemnified hereunder is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this Agreement in trust for, and on behalf of, such person and such person shall be entitled to enforce the provisions of this subsection, notwithstanding that such person is not a party to this Agreement;
(w) if the Corporation fails to incur and renounce to a Purchaser, on the terms of the Subscription Agreements, Qualified Expenditures in accordance with the terms of this Agreement, the Corporation shall indemnify such Purchaser, or each of the partners thereof if such Purchaser is a partnership or a limited partnership (for the purposes of this subsection, each an “Indemnified Person”), as to, and pay in settlement therefor to the Indemnified Person, within 30 days of such failure to renounce or incur, as applicable, an amount equal to the amount of any tax payable under the Tax Act (and any corresponding provincial legislation) by the Indemnified Person as a consequence of such failure. The foregoing indemnity shall have no force or effect and the Purchasers shall not have any recourse or rights of action to the extent that such indemnity, recourse or rights of action would otherwise cause the Offered Shares to be Prescribed Shares. To the extent that any person entitled to be indemnified hereunder is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this Agreement in trust for, and on behalf of, such person and such person shall be entitled to enforce the provisions of this subsection, notwithstanding that such person is not a party to this Agreement;
(x) upon issue, and but for any agreement or arrangement to which the Corporation is not a party and of which it is unaware, the Offered Shares will be “flow-through shares” as defined in subsection 66(15) of the Tax Act and not “prescribed shares” for the purposes of the definition of “flow-through share” in subsection 66(15) of the Tax Act and for the purpose of Regulation 6202.1; and
(y) if the Corporation amalgamates with any one or more companies, any shares issued to the initial Purchasers as a replacement for the Offered Shares as a result of such amalgamation will, but for any agreement or arrangement to which the Corporation is not a party and of which it is unaware, qualify, by virtue of subsection 87(4.4) of the Tax Act, as “flow-through shares” as defined in subsection 66(15) of the Tax Act and will not be “prescribed shares” as defined in section 6202.1 of the regulations to the Tax Act.
Appears in 1 contract
Covenants of the Corporation. The (a) In addition to the other indemnities provided by the Corporation hereby covenants herein, the Corporation shall indemnify, save, hold harmless, discharge and agrees with release the Holder as followsPurchaser from and against any and all Claims arising from or based on:
(ai) subject to Section 3.2(a), any inaccuracy in any of the representations or warranties made by the Corporation in this Agreement or any other agreement to be entered into in connection with the transactions contemplated hereby or any certificates delivered or to be delivered by or on behalf of the Corporation pursuant to the terms of this Agreement (collectively, the "Documents"); and
(ii) any breach of any covenant of the Corporation set forth in this Agreement or in the Documents.
(b) The Corporation will use reasonable efforts to ensure that the representations and warranties of the Corporation are true and correct at the Time of Closing and that the conditions of closing for the benefit of the Purchaser have been performed or complied with by the Time of Closing.
(c) The Corporation covenants and agrees with that the Holder proceeds of the issuance of the Securities shall be used for the acquisition of the shares of 1188980 Ontario Ltd. and 1005549 Ontario Limited, the repayment of certain operating loans provided by the Bank of Nova Scotia and to satisfy certain fees, commissions and expenses owing by the Corporation.
(d) The Corporation covenants and agrees that it shall repay and that it shall cause the Subsidiaries to maintain full and complete records of all of the Principal and any interest thereon to the Holder business or other transactions in accordance with good business practice pertaining to the terms hereofbusiness assets and liabilities of the Corporation and the Subsidiaries, including, without limitation, full and adequate financial and accounting records prepared in accordance with generally accepted accounting principles as the same may be established by either the Canadian Institute of Chartered Accountants or the American Institute of Certified Public Accountants, as applicable, ("GAAP") and such records shall be located at the offices of the Corporation and the Subsidiaries.
(i) The Corporation covenants and agrees that it shall at the request of the Purchaser and that it shall cause the Subsidiaries to deliver management unaudited monthly financial statements and to the Purchaser not later than thirty (30) days following the end of each month (commencing with the month ending June 30, 1999), such statements to be accompanied by management's analysis of results and comments on variances from budget.
(ii) The Corporation covenants and agrees that it shall cause the Subsidiaries to deliver unaudited quarterly financial statements to the Purchaser not later than forty-five (45) days following the end of each fiscal quarter (commencing with the calendar quarter ending June 30, 1999) and that the Corporation shall deliver consolidated unaudited quarterly financial statements to the Purchaser within said time period, all such statements to be prepared in accordance with GAAP and to be accompanied by management's analysis of results and comments on variances from budget, and to deliver audited consolidated annual financial statements prepared in accordance with GAAP and to be accompanied by management's analysis of results and comments on variances from budget and the auditors' management letter related to those statements to the Purchaser not later than one hundred and twenty (120) days following the end of each fiscal year.
(iii) The Corporation covenants and agrees that the board of directors of the Corporation (the "Board") shall approve a business plan for the next fiscal year (a copy of which will be delivered to the Purchaser at the same time it is delivered to the Board) no later than thirty (30) days prior to the end of the then current fiscal year, and management of the Corporation shall provide the Board and the Purchaser with quarterly forecast updates for the Business Plan for approval by the Board.
(iv) The Corporation covenants and agrees to deliver to the Purchaser within 30 days before the end of each fiscal year an annual budget for the next fiscal year of the Corporation, showing anticipated capital expenditures and cash flow and the Corporation will, upon request of the Purchaser, meet with the Purchaser to discuss the contents of such budget;
(bv) The Corporation covenants and agrees to deliver to the Purchaser copies of any reports, documents or information provided by the Corporation to its 20 - 20 - bank, Bank of Montreal Capital Corporation, Crosxxx Xxxital Management Inc. and/or First Ontario Fund.
(vi) The Corporation covenants and agrees to deliver to the Purchaser such other financial information, budgets and projections with respect to the Corporation and the Subsidiaries as the Purchaser may from time to time reasonably require.
(e) The Corporation shall, while the Purchaser is a shareholder of Common Shares of the Corporation representing at least five percent of the aggregate number of outstanding Common Shares and Class N Shares of the Corporation on a non-diluted basis, include as nominee(s) by management for the board of directors of the Corporation as set out in managements' information circular in respect of each shareholders' meeting at which directors are to be elected that number of individuals such that the number of nominees of the Purchaser elected to the board of directors of the Corporation shall give notice in writing forthwith equal the Purchaser's percentage ownership of the aggregate number of outstanding Common Shares and Class N Shares of the Corporation on a non-diluted basis (rounded up to the Holder next whole person if the first decimal in the calculation to be made hereunder is 0.5 or above), provided that in any event at least one nominee of the occurrence of any Event of DefaultPurchaser shall be so nominated, or other event which with lapse of time and/or giving of notice or otherwise would such individuals to be an Event of Default, forthwith upon becoming aware thereof designated by the Purchaser as its nominee(s) for director and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable its best efforts to preserve provide for the election of such person(s) as director(s) of the Corporation. Prior to their election to the Board, the SI Nominees shall be entitled to attend and shall receive notice of all meetings of the Board and will be provided the same information as provided to the directors in respect of any such meeting.
(f) The Corporation shall take all actions necessary at its next shareholders' meeting to approve the increasing of the size of the board of directors of the Corporation so as to permit the election of the Purchaser's nominees to the board of directors of the Corporation.
(g) The Corporation shall elect to the board of directors of International Menu Solutions Inc. ("IMSI") those nominees of the Purchaser which it is required to include as nominees to the board of directors of the Corporation pursuant to paragraph (e) above.
(h) The Corporation covenants and agrees that it shall use its best efforts (including, without limitation, making all filings with the Securities Exchange Commission as required) to maintain its corporate existence and the listing quotation of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in OTC Bulletin Board by no fewer than three registered market makers or to obtain and maintain a listing or quotation of the Common Shares ceasing to be listed on the NASDAQ Stock Market, the American Stock Exchange, the New York Stock Exchange so and/or The Toronto Stock Exchange (each a "Recognized Exchange").
(i) The Corporation covenants and agrees to use its best efforts to obtain directors' and officers' indemnity insurance in an amount not less than $3,000,000 (such coverage to extend to the directors and officers of each Subsidiary) as long as the holders premiums and other terms are reasonable in the sole opinion of securities the board of directors of the Corporation.
(j) The Corporation receive securities covenants and agrees that at any reasonable time and from time to time upon reasonable prior notice, which in any event shall not be less than 3 days, it will, within the limits of its powers and the law, permit Purchaser or any authorized representative thereof, at the expense and risk of the Purchaser, to inspect the Corporation's and any Subsidiary's assets and properties and to examine and make copies of any financial information in its possession relating to its records and books of account.
(k) The Corporation covenants and agrees that it shall not, and that it shall not permit any Subsidiary to, without prior approval by the Corporation's board of directors, (i) acquire assets other than assets required in the normal course of business for the carrying on of business; (ii) acquire assets in any event in an entity which is listed on a recognized Canadian amount in excess of $500,000; or U.S. stock exchange (iii) acquire the shares of another corporation or cashmerge, amalgamate, or enter into a plan of arrangement or joint venture agreement with another person.
(l) The Corporation covenants and agrees that it shall use its best efforts to have each of Olga Xxxxxxx, Xxrbxxx Xxxxxxxxx, Xxm Xxxxxxxxx, X. MxXxxxxx, X. Getros, K. Cxxxxxxxx, Xxn Xxxxxxxx xxx each new employee of the holders Corporation or any Subsidiary involved in product development execute a confidentiality, non-disclosure, full-time commitment, non-competition and intellectual property agreement on commencement of securities employment, with respect to new employees and as soon as possible with respect to current employees. The rights of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws Purchaser and the rules and policies obligations of the Exchange;
(dCorporation set forth in Sections 4.1(d) subject to 4.1(g) inclusive, 4.1(i), 4.(j) and 4.1(k) shall terminate when the Purchaser no longer owns the number of Common Shares required to be owned by the Purchaser in order to have a right to have a nominee named to the express provisions hereof, board of directors of the Corporation shall carry on and conduct its business as set out in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderSection 4.1(e).
Appears in 1 contract
Samples: Subscription Agreement (Southbridge Investment Partnership No 1)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder Agent as follows:
(a) the Corporation covenants and agrees with the Holder that it shall repay all will use commercially reasonable efforts to maintain its status as a reporting issuer not in default in each of the Principal and any interest thereon Selling Jurisdictions in which it is a reporting issuer or the equivalent for a period of at least thirty months following the date of this Agreement, provided that the foregoing requirement is subject to the Holder in accordance obligations of the directors of the Corporation to comply with their fiduciary duties to the terms hereofCorporation;
(b) as soon as reasonably possible, and in any event by the Closing Date the Corporation shall give notice take all such steps as may be required by the Agent and the Agent’s counsel to enable the Special Warrants to be offered for sale and sold on a private placement basis to Subscribers in writing forthwith the Selling Jurisdictions that qualify as “accredited investors” under Applicable Securities Laws through the Agent or any other investment dealers or brokers registered in any of the Selling Jurisdictions by way of the exemptions set forth in Applicable Securities Laws; provided, however, that the Corporation shall not be required to qualify as a foreign corporation in any state, to consent to service of process in any state other than with respect to claims related to the Holder of the occurrence of Offering or to comply with any Event of Default, continuous disclosure or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the samesimilar requirements;
(c) the Corporation will make all filings necessary with each applicable Securities Commission and pay all applicable fees in connection with the Offering in full compliance with the manner and within the time limits prescribed by Applicable Securities Laws;
(d) the Corporation shall duly, faithfully and punctually perform all the obligations to be performed by it and comply with its covenants and agreements hereunder and under the Transaction Documents;
(e) the Corporation shall use commercially its reasonable best efforts to preserve cause the U.S. Listing to occur as soon as possible following the Closing, and in any event no later than nine months thereafter, and to cause the Common Shares (including the Underlying Shares) to thereafter be and remain listed on NASDAQ or the NYSE (or another United States national securities exchange). The Corporation shall take all such actions as shall be necessary to effectuate and to maintain the U.S. Listing for a period of at least twenty-four months after its corporate existence initial occurrence, including the filing of a registration statement on the appropriate form with the United States Securities and Exchange Commission (the “SEC”), registering the Common Shares pursuant to Section 12(b) of the United States Securities Act of 1934, as amended (the “1934 Act”). The Corporation shall pay all fees and expenses in connection with satisfying its obligations under this subsection 5(e);
(f) with a view to making available to the Subscribers the benefits of Rule 144 under the 1933 Act (“Rule 144”) or any other similar rule or regulation of the SEC that may at any time permit the Subscribers to sell securities of the Corporation to the public without registration and otherwise to facilitate liquidity for trading in the United States, the Corporation agrees, following the date of the U.S. Listing, to:
(i) make public information available, as those terms are understood and defined in Rule 144;
(ii) file with the SEC in a timely manner all reports and other documents required of the Corporation under the 1934 Act; and
(iii) so long as any of the Subscribers own Underlying Shares that may not be sold pursuant to Rule 144 without compliance with the current public information requirement thereof, (i) furnish to the Subscribers a written statement by the Corporation that it has complied with the reporting requirements of the 1934 Act as required for applicable provisions of Rule 144, (ii) furnish or otherwise make available (on XXXXX or otherwise) a copy of the most recent annual or quarterly report of the Corporation and such other reports and documents so filed by the Corporation and (iii) furnish or otherwise make available such other information as may be reasonably requested to permit the Subscribers to sell such securities pursuant to Rule 144 without registration under the 1933 Act;
(g) the Corporation shall use its reasonable best efforts to cause the Common Shares (including the Underlying Shares) to be listed for trading on the TSX-V (or the Toronto Stock Exchange) as soon as possible following the Closing. Subsequent to a listing of the Common Shares on the TSX-V, the Corporation shall use its reasonable best efforts to maintain such listing for a period of thirty-six months. The Corporation shall take all such actions as shall be necessary to effectuate the listing of the Common Shares on the TSX-V and the maintenance thereof. The Corporation shall pay all fees and expenses in connection with satisfying its obligations under this subsection 5(g);
(h) from and after the filing of the press release announcing the Closing, no Subscriber shall be in possession of any material, nonpublic information received from the Corporation, the Subsidiary or any of their respective officers, directors, employees or agents, that is not disclosed in the press release announcing the Closing. The Corporation shall not, and shall cause the Subsidiary and its and each of their respective officers, directors, employees and agents, not to, provide any Subscriber with any material, nonpublic information regarding the Corporation or the Subsidiary from and after the filing of the press release announcing the Closing without the express written consent of such Subscriber. In the event of a breach of any of the foregoing covenants by the Corporation, the Subsidiary or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of such Subscriber), in addition to any other remedy provided herein or available at law or in equity, such Subscriber shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material, nonpublic information, as applicable, without the prior approval by the Corporation, the Subsidiary or any of its or their respective officers, directors, employees or agents. No Subscriber shall have any liability to the Corporation, the Subsidiary, or any of its or their respective officers, directors, employees, stockholders or agents, for any such disclosure;
(i) the Corporation shall use the proceeds from the issuance and sale of the Special Warrants for its pre-clinical and clinical development of the prostate cancer programs, working capital and general corporate purposes, including applying for a U.S. Listing;
(j) the Corporation shall use its best efforts to maintain its status as a “specified small business corporation” (within the meaning of the Income Tax Act (Canada)) at all times until the completion of a listing of the Common Shares on the TSX Venture Exchange, provided an initial public offering or a reverse takeover of a corporation listed on, or that this covenant obtains, a listing of its principal voting securities on the TSX Venture Exchange and shall not take any action that would cause or contribute to prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange maintaining such status; and
(k) for so long as a holder owns any Special Warrants, Underlying Shares or other Common Shares, upon the holders written request of securities such holder the Corporation shall furnish any information reasonably requested by such holder (and not generally available by reference to the Corporation’s publicly available SEC filings, if any) to confirm whether or not the Corporation is a passive foreign investment company (“PFIC”) under the United States Internal Revenue Code of 1986, as amended (the “Code”); provided, however, that the Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cashshall not be obligated to furnish any information that it has not already publicly disclosed. In addition, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies for each taxable year of the Exchange;
(d) subject to Corporation during any portion of which the express provisions hereofSpecial Warrants are outstanding or any holder holds Underlying Shares or other Common Shares, the Corporation shall carry make due inquiry of its tax advisors on and conduct an annual basis regarding its business in status as a proper and efficient manner PFIC and, subject if the Corporation’s tax advisors determine that the Corporation became a PFIC for any such taxable year, shall notify each holder, in writing, of the determination that the Corporation has become a PFIC for such taxable year by no later than 75 days following the close of such taxable year. With respect to (a) any taxable year in respect of which the express provisions hereof, it shall do or cause Corporation was determined to be done a PFIC and (b) each subsequent taxable year during any part of which the Special Warrants are outstanding or any holder holds Underlying Shares or other Common Shares, the Corporation shall promptly provide each holder, upon its written request, with all things information that is required by a United States person holding Common Shares in order to make a valid election to treat the Corporation as a “qualified electing fund” for the purposes of the Code, including a “PFIC Annual Information Statement” as described in Treasury Regulation section 1.1295-(1)(g)(1) (or any successor Treasury Regulation) and all representations and statements required by such Statement, and will take any other steps reasonably necessary to preserve facilitate such election by each such requesting holder. The Corporation understands and keep agrees that time is of the essence in full force complying with the foregoing deadlines, and effect its corporate existence; and
(e) that any failure by the Corporation agrees to pay so comply will be materially adverse to each holder. Each holder shall promptly respond to any written inquiry from the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, Corporation requesting the holder to inform the Corporation whether it owns any Underlying Shares or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderother Common Shares.
Appears in 1 contract
Samples: Agency Agreement (ESSA Pharma Inc.)
Covenants of the Corporation. The Corporation hereby covenants to and agrees with the Holder as followsUnderwriters (on their own behalf and on behalf of the Purchasers) that:
(a) the Corporation covenants and agrees with will use commercially reasonable efforts to maintain its status as a reporting issuer not in default in each the Holder Offering Jurisdictions in which it is a reporting issuer or the equivalent for a period of three years following the date of this Agreement, provided that it this covenant shall repay all not prevent the Corporation from completing any transaction which would result in the Corporation ceasing to be a “reporting issuer” so long as the holders of Common Shares receive securities of an entity which is listed on a stock exchange in Canada or United States, or cash, or the holders of the Principal and any interest thereon to Common Shares have approved the Holder transaction in accordance with the terms hereofrequirements of applicable corporate laws and the policies of the Exchange (or such other applicable stock exchange upon which it Common Shares are listed or quoted);
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall will use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of ensure that all Common Shares outstanding or issuable from time to time (including for certainty the Common Shares issuable upon due exercise or deemed exercise of the Special Warrants and the Warrant Shares issuable due upon exercise of the Warrants) are listed on the ExchangeExchange (or such other stock exchange acceptable to the Corporation) for a period of three years following the date of this Agreement, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation Common Shares receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange in Canada or the United States, or cash, or the holders of securities of Corporation the Common Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the ExchangeExchange (or such other applicable stock exchange upon which it Common Shares are listed or quoted);
(c) the Corporation will ensure that the Common Shares issuable upon due exercise or deemed exercise of the Special Warrants and the Warrant Shares will be conditionally approved for listing on the Exchange upon their issue;
(d) subject in the event any person acting or purporting to act for the express provisions hereofCorporation establishes a claim from the Underwriters for any brokerage or agency fee in connection with the transactions contemplated herein, the Corporation shall carry indemnify and hold harmless the Underwriters with respect thereto and with respect to all costs reasonably incurred in the defence thereof unless such claim is made by a selling agent appointed by the Underwriters pursuant to Section 2(b);
(e) until the date that is 120 days following the Closing Date, without the prior written consent of Cormark on behalf of the Underwriters, in all cases such consent not to be unreasonably withheld or delayed, the Corporation agrees not to issue, agree to issue, or announce an intention to issue, any Common Shares or any securities convertible into or exercisable for Common Shares, except in connection with (i) the grant or exercise of stock options and conduct its business in a proper and efficient manner and, subject other similar issuances pursuant to the express provisions hereofshare incentive plan of the Corporation and other share compensation arrangements; (ii) the exercise of outstanding warrants or convertible debt (including for greater certainty, it the convertible debentures issued by the Company to Cyrus Capital L.P. and/or its affiliates (collectively, “Cyrus”) on March 21, 2014); (iii) the supply agreement dated July 21, 2013 between Overland and the Corporation; (iv) the acquisition of certain technology assets of V3 Systems, Inc. and transactions related thereto; and (v) the acquisition of Overland and transactions related thereto as more particularly set forth in the Agreement and Plan of Merger dated May 15, 2014 (including, for greater certainty, in connection with issuance of or assumption of the convertible debentures issued by Overland to Cyrus);
(f) prior to the Time of Closing and at all times until a receipt for a Final Prospectus is issued, the Corporation will allow the Underwriters (and their counsel and consultants) to conduct all due diligence which the Underwriters may reasonably require or which may be considered necessary or appropriate by the Underwriters. The Corporation will provide to the Underwriters (and their counsel) reasonable access to the Corporation’s assets, 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 Underwriters (or their counsel) may conduct, the Corporation shall do also make available its directors, senior management, auditors and counsel to answer any questions that the Underwriters may have and to participate in one or more due diligence sessions to be held prior to Closing and prior to filing each of the Preliminary Prospectus and Final Prospectus and to use its commercially reasonable efforts to arrange for the auditors of the Corporation to provide written responses in connection with any such due diligence session;
(g) the Corporation will fulfil all legal requirements to permit at the Time of Closing the creation, issuance, offering and sale of the Special Warrants and the Qualified Securities, all as contemplated in this Agreement and file or cause to be done filed all things documents, applications, forms or undertakings required to be filed by the Corporation and take or cause to be taken all action required to be taken by the Corporation in connection with the purchase and sale of the Special Warrants and the issuance of the Qualified Securities, so that the distribution of the Qualified Securities may lawfully occur without the necessity of filing a prospectus in Canada or a registration statement in the United States or similar document in any other jurisdiction;
(h) until the date of the completion of the distribution of the Qualified Securities, the Corporation will use commercially reasonable efforts to ensure the Preliminary Prospectus and the Final Prospectus comply at all times with Applicable Securities Laws in Canada;
(i) during the period from the date hereof until the completion of the distribution of the Qualified Securities, the Corporation shall promptly inform the Underwriters of the full particulars of any request of any Securities Commission for any information, or the receipt by the Corporation of any communication from any Securities Commission or any other competent authority relating to the Corporation or which may be relevant to the distribution of the Qualified Securities;
(j) until the earlier of the Qualification Date and the Qualification Deadline, the Corporation shall use commercially reasonable efforts to promptly provide to the Underwriters and the Underwriters’ counsel, prior to the publication, filing or issuance thereof, any communication to the public;
(k) the Corporation shall advise the Underwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material have been filed and receipts therefor have been obtained pursuant to NP 11-202 and the Corporation shall provide evidence reasonably satisfactory to the Underwriters of each such filing and copies of such receipts;
(l) the Corporation shall advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Securities Commission of any order suspending or preventing the use of the 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 having been issued by any Securities Commission or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iv) any requests made by any Securities Commission 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 soon as possible;
(m) the Corporation shall use its best efforts to qualify the distribution of the Qualified Securities in the Canadian Offering Jurisdictions to holders of the Special Warrants and use its best efforts to file the Preliminary Prospectus in each of the Canadian Offering Jurisdictions as soon as possible following the Closing Date and shall use its best efforts to satisfy all comments with respect to the Preliminary Prospectus, prepare and file the Final Prospectus under Applicable Securities Laws, obtain a receipt for the Final Prospectus from each of the Canadian Offering Jurisdictions, and take all other steps and proceedings that may be necessary to preserve be taken by the Corporation in order to qualify the Qualified Securities for distribution in each of the Canadian Offering Jurisdictions under Applicable Securities Laws, as soon as practicable following the Closing Date and, in any event, prior to July 31, 2014;
(n) notwithstanding anything contained in the foregoing Section 7(m), in the event the Corporation fails to qualify the Qualified Securities for distribution in each of the Canadian Offering Jurisdictions prior to July 31, 2014, until the Qualification Deadline, the Corporation shall continue to use its best efforts to obtain a receipt for the Final Prospectus from each of the Canadian Offering Jurisdictions, and keep take all other steps and proceedings that may be necessary to be taken by the Corporation in full force order to qualify the Qualified Securities for distribution in each of the Canadian Offering Jurisdictions under Applicable Securities Laws;
(o) the Corporation shall allow the Underwriters to participate in the preparation of the Preliminary Prospectus, Final Prospectus and any Supplementary Material that the Corporation is required to file under Applicable Securities Laws relating to the Offering;
(p) the Corporation will deliver to the Underwriters, without charge, contemporaneously with, or prior to the filing of, the Final Prospectus, unless otherwise indicated:
(i) a copy of any document filed with, or delivered to, the Securities Commissions by the Corporation under Applicable Securities Laws with the Final Prospectus;
(ii) a certificate dated the date of the Final Prospectus, addressed to the Underwriters and signed by the Chief Executive Officer and Chief Financial Officer (or such other officer or officers of the Corporation acceptable to the Underwriters, acting reasonably) to the effect that, to their knowledge, information and belief, after due enquiry and without personal liability:
(1) the representations and warranties of the Corporation in this Agreement are true and correct in all respects as at the date of the Final Prospectus and the Corporation has performed all covenants and agreements and satisfied all conditions on its corporate existencepart to be performed or satisfied in all respects at or prior to the date of the Final Prospectus;
(2) no order, ruling or determination having the effect of suspending the sale or ceasing, suspending or restricting the trading of Special Warrants or the Qualified Securities in any of the Offering Jurisdictions has been issued or made by any stock exchange, securities commission or regulatory authority and is continuing in effect and no proceedings, investigations or enquiries for that purpose have been instituted or are pending or, to the knowledge of such officers, threatened;
(3) since the Time of Closing, there has been no material adverse change in the business, affairs, operations, assets, liabilities or capital of the Corporation; and
(eq) the Corporation agrees shall, as soon as practicable, use its commercially reasonable best efforts to pay receive all necessary consents to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereundertransactions contemplated herein.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants to the Underwriters and agrees to the Purchasers and their permitted assigns (such covenants having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying on such covenants, that the Corporation shall:
3.1.1 allow the Underwriters and their representatives, at all times prior to the Closing Time, the opportunity to conduct all due diligence which the Underwriters may reasonably require or which may be considered necessary or appropriate by the Underwriters. The Corporation will make available to the Underwriters (and their counsel), on a timely basis, all books and records including all corporate, financial, property, legal and operational information and documentation of the Corporation, and those concerning the Target to which the Corporation has had access, and will provide access to all facilities, properties, employees, auditors, legal counsel, consultants or other experts, to permit the Underwriters, their legal counsel and other advisers to conduct their due diligence investigation of the business and affairs of the Corporation, the Target and their subsidiaries, and will assist the Underwriters in sourcing any other information useful and necessary to conducting such due diligence. The Corporation shall also make available its directors, senior management, the Chairman of the Audit Committee of the Board of Directors and its auditor and legal counsel and shall use its best efforts to cause the directors, senior management and its auditor and legal counsel of the Target to answer any questions which the Underwriters may have and to participate in one or more due diligence sessions to be held prior to Closing. The Corporation shall make available and provide to the Underwriters (and their counsel), on a timely basis, all agreements, arrangements and understandings in connection with the Holder Proposed Acquisition and any of the other transactions contemplated thereby and copies of all written reports produced in the course of its due diligence investigation of the business and affairs of the Target and its subsidiaries;
3.1.2 duly execute and deliver the Subscription Agreements by the Closing Time, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation;
3.1.3 fulfil or cause to be fulfilled, at or prior to the Closing Date, each of the conditions set out in Section 5.2 of this Agreement;
3.1.4 use its best efforts to satisfy or cause to be satisfied the conditions of the Release Event before the Release Deadline;
3.1.5 ensure that the Offered Subscription Receipts, upon issuance, shall have the attributes corresponding in all material respects to the description thereof set forth in this Agreement, the Subscription Receipt Agreement and the Subscription Agreements;
3.1.6 ensure that the Underlying Shares, upon issuance, shall be duly issued as followsfully paid and non-assessable Common Shares, and shall have the attributes corresponding in all material respects to the description thereof set forth in this Agreement and the Subscription Agreements;
3.1.7 fulfil all legal requirements to permit (i) the creation, issuance, offering and sale of the Offered Subscription Receipts, (ii) the allotment, reservation and issue of the Underlying Shares issuable upon exercise of the Offered Subscription Receipts, all as contemplated in this Agreement, the Subscription Agreements and the Subscription Receipt Agreement and file or cause to be filed all documents, applications, forms or undertakings required to be filed by the Corporation and take or cause to be taken all action required to be taken by the Corporation in connection with the purchase and sale of the Offered Subscription Receipts;
3.1.8 ensure that at all times sufficient Underlying Shares are allotted and reserved for issuance upon the exercise of the Subscription Receipts;
3.1.9 ensure that the TSX conditional acceptance for the Offering and listing of the Underlying Shares has been obtained on or prior to the Closing Date;
3.1.10 use its commercial best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Canadian Securities Laws which have such a concept and will comply with all of its obligations under Applicable Securities Laws for a period of at least two years from the Closing Date;
3.1.11 use its best efforts to list the Offered Subscription Receipts on the TSX effective upon the expiry of the four-month resale restriction period if such Offered Subscription Receipts have not yet been exchanged into Underlying Shares by such time;
3.1.12 use its reasonable best efforts to list the Common Shares, including the Underlying Shares, on the London Stock Exchange, the New York Stock Exchange or NASDAQ within 15 months of the Closing Date;
3.1.13 not, directly or indirectly, offer, issue, sell, grant, secure, pledge, or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the Corporation until 90 days after the later of (i) 120 days after the Closing Date and (ii) the closing of the Proposed Acquisition, unless the Termination Time has occurred, in which case such covenants will terminate automatically at the Termination Time, without the prior written consent of Canaccord Genuity on behalf of the Underwriters, such consent not to be unreasonably withheld, except in conjunction with: (i) the grant or exercise of stock options and other similar issuances 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 agreements; (iv) the issuance of securities by the Corporation in connection with acquisitions in the normal course of business; (v) the issuance of Underlying Shares; or (vi) the issuance of other equity securities or securities convertible into equity securities (including Commitment Warrants, Commitment Shares and Preferred Shares) in connection with the Proposed Acquisition, on the terms set forth in the Commitment Letters, or hereunder;
3.1.14 cause each of its directors and senior officers to enter into a lock-up agreement in the form of agreement contemplated in Schedule C hereto;
3.1.15 execute and file with the Securities Regulators and the TSX all forms, notices and certificates required to be filed pursuant to the Canadian Securities Laws or the applicable securities laws of any other Selling Jurisdictions and the policies of the TSX in the time required by the Applicable Securities Laws and the policies of the TSX, including, for greater certainty, all forms, notices and certificates set forth in the opinions delivered to the Underwriters pursuant to Section 5.2 of this Agreement required to be filed by the Corporation;
3.1.16 advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof, of:
(a) the Corporation covenants and agrees with the Holder that it shall repay all institution, threatening or contemplation of the Principal and any interest thereon to the Holder in accordance with the terms hereof;proceeding for any such purposes; or
(b) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation shall (including the Subscription Receipts and Common Shares) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceedings for any such purposes;
3.1.17 deliver to the Underwriters copies of all correspondence and other written communications between the Corporation and the Securities Regulators relating to the Offering and the Proposed Acquisition and its financing and will generally keep the Underwriters apprised of the progress and status of, including all favourable and adverse developments relating to, the Offering and the Proposed Acquisition and its financing;
3.1.18 duly call, give notice of, convene and hold the Meeting as promptly as practicable with a targeted date of July 30, 2014, and in writing forthwith any event not later than August 15, 2014;
3.1.19 as promptly as reasonably practicable file and mail the Circular in compliance with Applicable Securities Laws;
3.1.20 use the net proceeds from the Offering to partially fund the Proposed Acquisition;
3.1.21 use its best efforts to expeditiously pursue the satisfaction of all conditions to the Holder completion, and the closing, of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would Proposed Acquisition that are to be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) fulfilled by the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and on or before the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceRelease Deadline; and
(e) 3.1.22 comply with each of the covenants of the Corporation agrees to pay to set out in the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderSubscription Agreements.
Appears in 1 contract
Samples: Underwriting Agreement (Amaya Inc.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder Subscriber as followsfollows and acknowledges that the Subscriber is relying on such covenants in connection with the transactions contemplated herein:
(a) Subject to the accuracy of all representations and warranties of the Subscriber hereunder, to offer, sell, issue and deliver the Offered Shares pursuant to exemptions from the prospectus filing, registration or qualification requirements of applicable Securities Laws and otherwise fulfil all legal requirements required to be fulfilled by the Corporation covenants and agrees (including without limitation, compliance with all applicable Securities Laws of the Selling Jurisdictions) in connection with the Holder that it shall repay all of the Principal and any interest thereon to the Holder in accordance with the terms hereofOffering;
(b) within the Corporation shall give notice required time, to file with the TSXV any documents, reports and information, in writing forthwith the required form, required to be filed by applicable Securities Laws in connection with the Holder Offering, together with any applicable filing fees and other materials, provided that the Subscriber has provided all such information and forms as may be required by applicable Securities Laws of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof Selling Jurisdictions and specifying by the nature of such default and/or Event of Default and the steps taken to remedy the sameTSXV;
(c) the Corporation shall to use commercially reasonable commercial efforts to preserve and maintain its corporate existence and the listing satisfy as expeditiously as possible any conditions of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing TSXV required to be listed on satisfied prior to the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies TSXV’s acceptance of the ExchangeCorporation’s notice of the Offering;
(d) subject to use its reasonable commercial efforts to obtain all necessary approvals for this Offering;
(e) to provide to the express provisions hereofSubscriber, at least quarterly, a comparison in tabular form of the Corporation’s intended use of the Aggregate Subscription Price (as described in Subsection 5.1(dd) of this Subscription Agreement) and the Corporation’s actual use of the Aggregate Subscription Price. The Corporation shall carry include in such tabulation an explanation of variances and the impact of variances, if any, on and conduct the Corporation’s ability to achieve its business in a proper objectives and efficient manner andmilestones;
(f) as soon as practicable following the Closing Date, subject to use its commercially reasonable efforts to obtain and provide to the express provisions hereofSubscriber a title survey, it shall do or cause in form and substance satisfactory to be done all things necessary the Subscriber, acting reasonably, with respect to preserve and keep in full force and effect its corporate existencethe Xxxxxx Property; and
(eg) as soon as practicable following the Corporation agrees Closing Date, to pay to the Holder forthwith upon demand all costs, charges purchase and expenses (including reasonable legal fees) of, or incurred by the Holder in connection maintain a directors and officers liability insurance policy with the realization at least $5 million of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereundercoverage from a reputable and nationally known insurance company.
Appears in 1 contract
Samples: Subscription Agreement
Covenants of the Corporation. (a) The Corporation hereby covenants to the Agents and agrees to the Purchasers, and acknowledges that each of them is relying on such covenants in connection with the Holder as followspurchase of the Subscription Receipts, that the Corporation (including its successors and assigns if applicable) shall:
(ai) allow the Agents and their representatives the opportunity to conduct all due diligence which the Agents may reasonably require to be conducted prior to the final Closing Date. The Corporation will provide to the Agents (and Agents’ Counsel) reasonable access to the Corporation’s offices, senior management personnel and corporate, financial and other records as the Agents and their representatives may reasonably request, for the purposes of conducting such due diligence. Without limiting the scope of the due diligence inquiry the Agents (or Agents’ Counsel) may conduct, the Corporation shall use its commercially reasonable efforts to make available its directors, senior management, the Corporation’s Auditors and counsel to answer any questions which the Agents may reasonably have and to participate in one or more due diligence sessions to be held prior to each Closing Time (each, a “Due Diligence Session”);
(ii) use its commercially reasonable efforts to fulfil or cause to be fulfilled, at or prior to each Closing Time, each of the conditions required to be fulfilled by it set out in Section 10 hereof;
(iii) duly execute and deliver this Agreement, the Warrant Indenture, the Subscription Receipt Agreement, the Compensation Option Certificates and each Subscription Agreement and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation;
(iv) fulfill all legal requirements to permit: (A) the Corporation covenants creation and agrees issuance of the Subscription Receipts and the Compensation Options at the applicable Closing Time; (B) the issuance of the Underlying Shares and the Underlying Warrants issuable upon conversion of the Subscription Receipts; (C) the issuance of the Warrant Shares upon the exercise of the Underlying Warrants; (D) the issuance of the Compensation Shares and Compensation Warrants upon the exercise of the Compensation Options; and (E) the issuance of the Compensation Warrant Shares upon the exercise of the Compensation Warrants, as contemplated by this Agreement, the Warrant Indenture, the Subscription Receipt Agreement, the Compensation Option Certificates and the Subscription Agreements, as applicable;
(v) during the period commencing on the date hereof until the earlier of the Conversion Date and the Termination Event, provide to the Agents, for review by the Agents and the Agents’ Counsel, prior to the publication, filing, mailing or issuance thereof any document relating to communication to the public or to the Corporation’s securityholders (including the Listing Statement), and any information circular or press release, in each case regarding the Subscription Receipts or the Transactions;
(vi) comply with the Holder that it shall repay all provisions of Schedule “A” to this Agreement;
(vii) not amend, supplement or otherwise modify the Trust Indenture without the prior consent of the Principal Lead Agent (on behalf of the Agents), such consent not to be unreasonably withheld;
(viii) use its commercially reasonable efforts to complete the Transactions as soon as practicable and, in any event, on or before the Escrow Release Deadline, and any interest thereon satisfy the Escrow Release Conditions that are within its control prior to the Holder Escrow Release Deadline, and to assist Canada Iron to obtain the necessary approvals to list the Resulting Issuer Shares (including, for certainty, the Resulting Issuer Warrant Shares, Resulting Issuer Compensation Shares and Resulting Issuer Compensation Warrant Shares) on the CSE, which Listing shall be conditionally approved prior to the completion of the Transactions, and to obtain, as soon as practicable after the completion of the Transactions, final approval to list and post for trading on the CSE, the Resulting Issuer Shares (including, for certainty, the Resulting Issuer Warrant Shares and the Resulting Issuer Compensation Shares);
(ix) until the earlier of the Conversion Date and the Termination Event, promptly inform the Agents of the full particulars of:
(A) any request of any Securities Commission or similar regulatory authority (including the CSE) for any amendment to any previously provided information or for any additional information which may be material to the distribution of the Subscription Receipts or the issuance of the Underlying Shares, the Underlying Warrants, the Warrant Shares, or to the Corporation’s knowledge, the Resulting Issuer Shares, the Resulting Issuer Warrants or the Resulting Issuer Warrant Shares, as the case may be;
(B) the issuance by any Securities Commission or similar regulatory authority (including the CSE) or by any other competent authority of any order to cease or suspend trading of any securities of the Corporation or, to the Corporation’s knowledge, any securities of Canada Iron or the Resulting Issuer, or of the institution or threat of institution of any proceedings for either purpose (and except as otherwise agreed by the Agents, the Corporation will use its commercially reasonable efforts to prevent the issuance of any such cease trading order or suspension order of any securities of the Corporation and, if issued, to obtain the withdrawal thereof as soon as possible); or
(C) the receipt by the Corporation of any material communication from any Securities Commission or stock exchange (including the CSE) or any other competent authority relating to the distribution of the Subscription Receipts or the issuance of the Underlying Shares, the Underlying Warrants, the Warrant Shares, the Resulting Issuer Shares, the Resulting Issuer Warrants or the Resulting Issuer Warrant Shares, as the case may be;
(x) following satisfaction of the Escrow Release Conditions, use the net proceeds of the Offering substantially as set forth in the Corporate Presentation;
(xi) ensure that the Subscription Receipts and the Compensation Options are duly and validly created, authorized and issued and shall have attributes corresponding in all material respects to the description set forth in this Agreement, the Subscription Receipt Agreement, the Subscription Agreements and Compensation Options Certificates, as applicable;
(xii) ensure that, at all times prior to the earlier of the Conversion Date and the Termination Event, a sufficient number of Underlying Shares and Underlying Warrants are allotted and reserved for issuance upon the conversion of the Subscription Receipts in accordance with the terms hereofof the Subscription Receipt Agreement;
(bxiii) ensure that the Corporation Underlying Shares issuable upon conversion of the Subscription Receipts shall give notice be duly issued as fully paid and non-assessable Common Shares and shall have the attributes corresponding in writing forthwith all material respects to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware description thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameset forth in this Agreement;
(cxiv) ensure that the Underlying Warrants are duly and validly created, authorized and issued and that the Underlying Warrants shall have the attributes corresponding in all material respects to the description set forth in this Agreement, the Warrant Indenture and the Subscription Agreements;
(xv) ensure that, at all times prior to the expiry of the Warrants, a sufficient number of Warrant Shares are allotted and reserved for issuance upon the exercise of the Underlying Warrants, and the Warrant Shares upon their issuance in accordance with the terms of the Warrants shall be duly issued as fully paid and non-assessable common shares of the Corporation;
(xvi) ensure that at all times prior to the expiry of the Compensation Options, a sufficient number of Compensation Shares and Compensation Warrants are authorized, allotted and reserved for issuance upon the exercise of the Compensation Options in accordance with their terms, and upon the issuance in accordance with the terms of the Compensation Option Certificates, the Compensation Shares shall be duly issued as fully paid and non-assessable common shares of the Corporation and the Compensation Warrants shall be duly and validly created and issued and the Compensation Warrants shall have the attributes corresponding to the description thereof set forth in the Warrant Indenture;
(xvii) ensure that at all times prior to the expiry of the Compensation Options, a sufficient number of Compensation Warrant Shares are authorized and allotted for issuance upon the exercise of the Compensation Warrants, and the Compensation Warrant Shares upon issuance in accordance with the terms of the Warrant Indenture shall be validly issued as fully paid and non-assessable common shares in the capital of the Corporation;
(xviii) provided that the Escrow Release Conditions are satisfied on or before the Escrow Release Deadline, use its commercially reasonable efforts to ensure that the Resulting Issuer Shares, Resulting Issuer Warrant Shares, Resulting Issuer Compensation Shares and Resulting Issuer Compensation Warrant Shares are, when issued or as soon as possible thereafter in accordance with the policies of the CSE, listed and posted for trading on the CSE, it being acknowledged that the Listing shall be conditionally approved prior to the completion of the Transactions;
(xix) obtain all consents, including approvals, Permits, authorizations or filings as may be required under Canadian Securities Laws, or otherwise necessary for the execution and delivery of and the performance by the Corporation of its obligations under this Agreement, the Warrant Indenture, the Subscription Agreements, the Subscription Receipt Agreement, the Compensation Option Certificates and the Transaction Agreement;
(xx) not enter into any pre-Closing reorganization, other than as expressly contemplated in the Transaction Agreement, without the consent of the Agents;
(xxi) use commercially reasonable efforts to: (A) close the Transactions on substantially the same terms as set out in the Transaction Agreement, and (B) not amend, delete or waive any provision of the Transaction Agreement, in each case without the prior written consent of the Agents (such consent not to be unreasonably withheld or delayed) and further provided that the Lead Agent shall have the opportunity to review and provide reasonable comments on the Transaction Agreement;
(xxii) forthwith notify the Agents of any material breach of any covenant of this Agreement, or upon it becoming aware that any representation or warranty of the Corporation contained in this Agreement, the Warrant Indenture, the Subscription Agreements, the Subscription Receipt Agreement, the Compensation Option Certificates or the Transaction Agreement is or has become untrue or inaccurate in any material respect (except for representations and warranties of the Corporation qualified by materiality or which refer to a Material Adverse Effect (or similar effect), which shall be true and correct in all respects);
(xxiii) comply in all material respects with all of the obligations to be performed by it, and all of its covenants and agreements, under and pursuant to this Agreement, the Warrant Indenture, the Subscription Agreements, the Subscription Receipt Agreement, the Compensation Option Certificates and the Transaction Agreement, except to the extent the Agents (acting reasonably) provide a prior waiver in writing in respect to any such obligation;
(xxiv) use commercially reasonable efforts to preserve and maintain its corporate existence ensure the Transactions are structured to ensure: (A) the Resulting Issuer Shares, the Resulting Issuer Warrants, the Resulting Issuer Warrant Shares, the Resulting Issuer Compensation Shares, the Resulting Issuer Compensation Warrants and the listing Resulting Issuer Compensation Warrant Shares are free of any statutory hold period under Canadian Securities Laws; and (B) the Common Shares on Resulting Issuer is a “foreign private issuer” as such term is defined in Rule 405 promulgated under the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the ExchangeSecurities Act;
(dxxv) subject upon satisfaction of the Escrow Release Conditions (other than the delivery of the Release Notice) to the express provisions hereof, satisfaction of the Lead Agent and the Corporation shall carry on and conduct its business in a proper and efficient manner Canada Iron (each acting reasonably), execute and, subject to the express provisions hereofcooperation of the Lead Agent and Canada Iron, it shall deliver a notice to the Subscription Receipt Agent, in the form contemplated by and in accordance with the Subscription Receipt Agreement, confirming that the Release Conditions have been satisfied or waived (the “Release Notice”);
(xxvi) ensure that all information and statements contained in the Listing Statement relating to the Corporation, the Offering and the Transaction are true and correct in all material respects and do not contain a misrepresentation and, to the knowledge of the Corporation, will not omit any material fact or cause to be done all things information which is necessary to preserve and keep make the statements or information contained therein not misleading in full force and effect its corporate existencelight of the circumstances under which they were made; and
(exxvii) prior to or concurrently with the Corporation agrees completion of the Transactions, cause its counsel to pay deliver legal opinions addressed to the Holder forthwith upon demand all costsAgents, charges in form and expenses (including reasonable substance satisfactory to the Agents, acting reasonably, from Xxxxxx & Xxxxxxx LLP, special U.S. legal fees) ofcounsel to the Corporation, or incurred by confirming that registration under the Holder U.S. Securities Act is not required in connection with the realization exchange of the Underlying Shares and the Underlying Warrants for the Resulting Issuer Shares and the Resulting Issuer Warrants pursuant to the Transactions, provided such offers and sales are made in compliance with Schedule “A” to this Debenture or Agreement and provided further that it being understood that no opinion is expressed as to any part thereof, or in recovering or enforcing payment subsequent resale of any of the monies owing hereunderResulting Issuer Shares or Resulting Issuer Warrants.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants, to the Agents and to the Purchasers and their permitted assigns, and acknowledges that each of them is relying on such covenants and agrees in connection with the Holder as followstransactions contemplated by this Agreement, that the Corporation (including its successors and assigns if applicable) will:
(ai) allow the Agents and their representatives to conduct all due diligence regarding the Corporation covenants and agrees with which the Holder that it shall repay all of the Principal and any interest thereon Agents may reasonably require to be conducted prior to the Holder Closing Date, including making available its senior management and legal counsel and auditors to answer any questions which the Agents may have and to participate in accordance with the terms hereofone or more due diligence sessions to be held prior to Closing;
(bii) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve fulfil or cause to be fulfilled, at or prior to the Closing Time, each of the conditions required to be fulfilled as set out in Section 6;
(iii) duly execute and deliver this Agreement, the Subscription Receipt Agreement (insofar as the Corporation is concerned), the Broker Warrants and the Subscription Agreements (insofar as the Corporation is concerned) at the Closing Time, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by them;
(iv) subject to applicable law, obtain the prior approval of the Lead Agent as to the content and form of any press release relating to the Offering and the Business Combination, such approval not to be unreasonably withheld or delayed;
(v) following satisfaction of the Release Conditions, use the net proceeds of the Offering in the manner described in the Term Sheet;
(vi) ensure that the Offered Securities, on payment therefor, are duly and validly created, authorized and issued and shall have attributes corresponding in all material respects to the description set forth in this Agreement;
(vii) ensure that the Subscription Receipt Shares, upon issuance, shall be duly issued as fully paid and non-assessable, and shall have the attributes corresponding in all material respects to the description thereof set forth in this Agreement and the Subscription Agreements;
(viii) execute and deliver or file with the Securities Regulators as required all forms, notices and certificates relating to the Offering required to be filed pursuant to the Securities Laws in the time required by applicable Securities Laws, including, for greater certainty, all forms, notices, offering memoranda and certificates;
(ix) prior to the Closing Time, use commercially reasonably efforts to cause each of the senior officers and directors of the Corporation and 6th Wave listed in Schedule “B” (a “Locked-up Holder”), to enter into an undertaking (the “Lock-up Undertakings”) in favour of the Agents substantially in the form set out in Schedule “B” to this Agreement pursuant to which such person shall agree not to, and will not permit any of his, her or its affiliates (as such term is defined in the
(x) promptly notify the Agents of the receipt by the Corporation of any notice by any judicial or regulatory authority or any stock exchange requesting any information, meeting or hearing relating to such entity in respect of the Offering;
(xi) duly execute and deliver the Escrow Release Certificate to the Agents, dated as of the date that the Release Conditions are satisfied; and
(xii) promptly notify the Lead Agent in writing or disclose to the public if the Corporation no longer intends to complete the Business Combination prior to the Escrow Deadline;
(xiii) subject to the completion of the Business Combination, ensure that, at all times a sufficient number of Broker Warrant Shares are allotted in respect of the Broker Warrants and reserved for issuance upon completion of the Offering;
(xiv) take all required actions to ensure that the capital structure of the Corporation after giving effect to the Business Combination will be consistent in all respects with the Pro Forma Capital Structure as set out in Schedule “C”;
(xv) prepare and file a listing statement in the form prescribed by the CSE (the “Listing Statement”) prior to the Escrow Deadline, which statement will include historical financial statements for the Corporation and 6th Wave as well as business, operational and management information that complies with all requirements of the CSE and Securities Laws;
(xvi) subject to the completion of the Business Combination, use its commercially reasonable efforts to ensure that the Common Shares (including the Broker Warrant Shares), are, upon the completion of the Business Combination, listed and posted for trading on the CSE;
(xvii) use its commercially reasonable best efforts to maintain its corporate existence and status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Canadian Securities Laws in each of the Designated Jurisdictions, provided that the foregoing requirement is subject to the obligations of the directors to comply with their fiduciary duties to the Corporation;
(xviii) use its commercially reasonable best efforts to maintain the listing of the Common Shares (including those issuable pursuant to the Offering) on the ExchangeCSE or such other recognized stock exchange or quotation system as the Agents may approve, acting reasonably, for a period of at least 24 months following the Effective Date, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in foregoing requirement is subject to the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies obligations of the Exchangedirectors to comply with their fiduciary duties to the Corporation;
(dxix) subject immediately prior to the express provisions hereofcompletion of the Business Combination, deliver a certificate signed by such officers as may be acceptable to the Lead Agent, acting reasonably, certifying to the Agents that, after giving effect to the Business Combination, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject share structure of the Company will substantially conform to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep Pro Forma Capital Structure set out in full force and effect its corporate existenceSchedule “C”; and
(exx) immediately prior to the completion of the Business Combination, deliver a certificate signed by an appropriate officer or officers of the Corporation, addressed to the Agents, certifying that the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, is not in breach or incurred by the Holder default in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment material respect of any of its covenants, obligations or representations and warranties under the monies owing hereunderSubscription Receipt Agreement or this Agreement, except (in the case of this Agreement only) for those breaches or defaults that have been waived by the Lead Agent.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) the Corporation covenants and agrees with the Holder that it Investor that:
(a) The Corporation shall repay comply, and the Corporation shall cause the Subsidiary to comply, with all laws, rules, regulations and orders, the non-compliance with which could materially and adversely affect the Business or the performance by the Corporation of the Principal and its obligations under this Agreement or any interest thereon to the Holder in accordance other agreement with the terms hereof;Investor, as the case may be.
(b) The Corporation will diligently observe and perform or cause to be observed and performed all covenants to be observed or performed under the Transaction Documents and under any other agreement between the Corporation and the Investor, as the case may be.
(c) At any reasonable time and from time to time upon reasonable prior notice, the Corporation shall permit a representative of the Investor, at the reasonable expense of the Corporation, to examine and make copies of any abstracts from its records and books of account and to visit and inspect the Corporation and the Subsidiary and to discuss the affairs, finances and accounts of the Corporation and the Subsidiary with any of the directors, officers or senior management personnel of the Corporation and the Subsidiary.
(d) The Corporation shall, and shall cause the Subsidiary to, do all things necessary to obtain, promptly renew and maintain in good standing from time to time, all approvals, leases, licenses, permits and consents as are required to own, develop and operate the Business, Assets, property and undertaking and perform its obligations under this Agreement and all other agreements between the Corporation and the Investor, as the case may be.
(e) The Corporation shall give notice in writing forthwith to the Holder Investor forthwith of the occurrence of any Event material litigation, proceeding or dispute affecting the Corporation or the Subsidiary and from time to time shall provide the Investor with all reasonable information requested by the Investor concerning the status of Defaultany such litigation, proceeding or other event which dispute.
(f) The Corporation shall forthwith give notice to the Investor of any fact which, with the giving of notice, lapse of time and/or giving of notice or otherwise would be may constitute an Event event of Defaultdefault under any Material Contract or other obligation of the Corporation which might have a material adverse effect on the Corporation, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;Business or Assets.
(cg) On the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereofClosing, the Corporation shall carry on file all documents and conduct its business in a proper and efficient manner and, subject take all proceedings required to be taken by it to permit the Subscribed Shares to be distributed to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep Investor in full force and effect its corporate existence; andcompliance with applicable securities legislation in Canada.
(eh) The Corporation shall forthwith give notice to the Investor of any fact which, with the giving of notice, lapse of time or otherwise constitute a breach of the obligations of or an event of default by, a Founder under the Proprietary Rights Agreement or Section 6 of the Securityholders' Agreement. In the event of such breach or default, the Corporation agrees shall take all necessary action to pay enforce the rights of the Corporation under the Proprietary Rights Agreement or Section 6 of the Securityholders' Agreement.
(i) The Corporation hereby grants to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by Investor the Holder contractual rights of action summarized in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderBusiness Plan.
Appears in 1 contract
Samples: Investment Agreement (Zixit Corp)
Covenants of the Corporation. The Corporation hereby covenants to the Agent and agrees to the Purchasers and their permitted assigns, and acknowledges that each of them is relying on such covenants in connection with the Holder as followspurchase of the Units, that the Corporation (including its successors and assigns if applicable) will:
(a) allow the Agent and its representatives to conduct all due diligence regarding the Corporation covenants and agrees with its subsidiaries which the Holder that it shall repay all of the Principal and any interest thereon Agent may reasonably require to be conducted prior to the Holder in accordance with the terms hereofClosing Date;
(b) the Corporation shall give notice in writing forthwith use its commercially reasonable efforts to fulfil or cause to be fulfilled, at or prior to the Holder Closing Time, each of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would conditions required to be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the samefulfilled as set out in Section 5;
(c) until the Corporation shall Maturity Date, use commercially reasonable efforts to preserve remain a corporation validly existing under the laws of the Province of Ontario, licensed, registered or qualified as an extra- provincial or foreign corporation in all jurisdictions where the Corporation determines such licensing, registration or qualification is necessary to carry on its business and the business of its subsidiaries, provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, binding share exchange, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction;
(d) until the Maturity Date, maintain its corporate existence and status as a “reporting issuer” under the Securities Laws of at least one jurisdiction of Canada not in default of any requirement of such Securities Laws, provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, binding share exchange, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction;
(e) until the Maturity Date, use commercially reasonable efforts to maintain the listing of the Common Shares on the ExchangeCSE or such other recognized stock exchange or quotation system in Canada, provided that this covenant clause shall not prevent be construed as limiting or restricting the Corporation from completing any transaction a consolidation, amalgamation, arrangement, binding share exchange, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction;
(f) duly execute and deliver the Transaction Documents, to which would result in it is a party, at the Closing Time, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation;
(g) fulfill all legal requirements to permit the creation and issuance of the Debentures and Warrants comprising the Units and the Compensation Warrants at the Closing Time and the issuance of the Common Shares ceasing to be listed on issuable upon conversion or exercise of the Exchange so long as Debentures, the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws Warrants and the rules Compensation Warrants, as applicable, all as contemplated by the Transaction Documents, and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do file or cause to be done filed all things necessary forms, notices, documents, applications, undertakings or certificates required to preserve be filed by the Corporation in connection with the Offering so that the distribution of such securities may lawfully occur without the necessity of filing a prospectus in Canada or a registration statement in the United States or similar document in any other jurisdiction;
(h) ensure that, at the Closing Time, on payment therefor, the Debentures shall be validly created and keep issued and shall have attributes corresponding in full force all material respects to the description thereof set forth in the Indenture;
(i) ensure that, at all times prior to the Maturity Date, a sufficient number of Common Shares are allotted and effect its reserved for issuance upon the due conversion of, or payment of interest in respect of, the Debentures, in each case, in accordance with their terms;
(j) ensure that any Common Shares issuable upon the due conversion of the Debentures shall be duly issued as fully paid and non-assessable Common Shares of the Corporation;
(k) ensure that, at the Closing Time, the Warrants, on payment therefor, and the Compensation Warrants shall be validly created and issued and shall have attributes corresponding in all material respects to the description thereof set forth in this Agreement and the Warrant Indenture;
(l) ensure that at all times prior to the expiry of the Warrants and the Compensation Warrants, a sufficient number of Warrant Shares are allotted and reserved for issuance upon the due exercise of the Warrants and the Compensation Warrants, in each case, in accordance with their terms;
(m) ensure that the Warrant Shares issuable upon the due exercise of the Warrants and the Compensation Warrants in accordance with their terms, shall be duly issued as fully paid and non-assessable Common Shares of the Corporation on payment of the purchase price therefor;
(n) subject to applicable law, obtain the prior approval of the Agent as to the content and form of any press release relating to the Offering;
(o) use the net proceeds of the Offering for working capital and general corporate existencepurposes;
(p) for the period of 120 days following the Closing Date, not, directly or indirectly, offer, issue, sell, grant, secure, pledge, or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the Corporation, without the prior written consent of the Agent (such consent not to be unreasonably withheld or delayed), other than in conjunction with: (A) the grant of stock options and other similar issuances pursuant to the share incentive plan of the Corporation and other share compensation arrangements, provided that the exercise price thereof shall not be less than the Conversion Price; (B) the exercise of outstanding stock options and warrants; (C) obligations of the Corporation in respect of existing agreements, including agreements that are in process but not yet executed; or (D) the issuance of securities by the Corporation in connection with acquisitions and the conversion of other outstanding convertible securities;
(q) prior to the Closing Time, cause each of the directors and senior officers of the Corporation to enter into a lock-up undertaking in favour of the Agent pursuant to which such person shall agree not to, directly or indirectly, offer, issue, sell, grant, secure, pledge, or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities
(r) execute and file with the Securities Regulators all forms, notices and certificates relating to the Offering required to be filed pursuant to the Securities Laws in the time required by applicable Securities Laws, including, for greater certainty, all forms, notices and certificates set forth in the opinions delivered to the Agent pursuant to this Agreement required to be filed by the Corporation;
(s) file documents with the CSE that are required by the CSE as soon as possible after the Closing Date and in any event within any deadline imposed by the CSE; and
(et) promptly notify the Agent of the receipt by the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment Subsidiary of any of notice by any judicial or regulatory authority or any stock exchange requesting any information, meeting or hearing relating to such entity for the monies owing hereunderOffering.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Underwriters and agrees the Purchasers, and acknowledges that each of them is relying on such covenants in connection with the Holder as followspurchase of the Offered Securities, that the Corporation shall:
(ai) the Corporation covenants and agrees with the Holder that it shall repay all of the Principal and any interest thereon to the Holder in accordance with the terms hereof;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use its commercially reasonable efforts to preserve and maintain its corporate existence status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws in each of the applicable Offering Jurisdictions where the Corporation is a “reporting issuer” as of the date hereof for a period of at least 36 months following the Closing Date, provided that the foregoing requirement is subject to the obligations of the directors to comply with their fiduciary duties to the Corporation and shall not limit or be construed as limiting or restricting the Corporation from completing any consolidation, amalgamation, arrangement, business combination, sale of all or substantially all of the Corporation's assets, take-over bid, merger or other similar transaction;
(ii) use its commercially reasonable efforts to maintain the listing of the Common Shares (including those issuable pursuant to the Offering) on the ExchangeExchange or such other recognized stock exchange or quotation system as the Lead Underwriter, on behalf of the Underwriters, may approve, acting reasonably, for a period of at least 36 months following the Closing Date, provided that this covenant the foregoing requirement is subject to the obligations of the directors to comply with their fiduciary duties to the Corporation and shall not prevent limit or be construed as limiting or restricting the Corporation from completing any transaction which would result in consolidation, amalgamation, arrangement, business combination, sale of all or substantially all of the Common Shares ceasing Corporation's assets, take- over bid, merger or other similar transaction;
(iii) maintain a system of internal accounting controls sufficient to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to monies and investments is permitted only in accordance with management’s general or specific authorization, and (iv) the requirements recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences for a period of at least 36 months following the Closing Date;
(iv) at or prior to the Closing Time, satisfy all terms, conditions and covenants contained in this Agreement to be complied with or satisfied by the Corporation (unless waived by the Lead Underwriter, on behalf of the Underwriters) in all material respects (except where already qualified by a materiality qualification, in which case the Corporation shall have complied or satisfied in all respects);
(v) ensure that at the Closing Time the Unit Shares and Corporate Finance Shares will be issued as fully paid and non-assessable shares in the capital of the Corporation on payment of the purchase price therefor and the Unit Warrants, Broker Warrants and Broker Unit Warrants have been duly created and issued and shall have attributes corresponding in all material respects to the description thereof set forth in this Agreement, the Broker Warrant Certificates and the Warrant Indenture, as applicable;
(vi) ensure that, upon due exercise of the Unit Warrants, Broker Warrants and Broker Unit Warrants in accordance with their terms, the Warrant Shares, Broker Shares and Broker Unit Shares shall be duly issued as fully paid and non-assessable shares in the capital of the Corporation on payment of the purchase price therefor;
(vii) obtain all consents, approvals, permits, authorizations or filings as may be required under Securities Laws or otherwise necessary for the execution and delivery of and the performance by the Corporation of its obligations hereunder and under the Subscription Agreements, other than customary post-closing filings required to be submitted within the applicable corporate and securities laws time frame pursuant to Securities Laws and the rules and policies of the Exchange;
(dviii) ensure that all required documentation for the listing of the Unit Shares, the Corporate Finance Shares, the Warrant Shares (upon the exercise of the Unit Warrants), Broker Shares (upon the exercise of the Broker Warrants) and Broker Unit Shares (upon the exercise of the Broker Unit Warrants), have been filed with the Exchange on or prior to the Closing Date, subject to the express provisions hereofsatisfaction of customary listing conditions set out in the conditional approval letter of the Exchange for the Offering, a copy of which has been made available to the Underwriters;
(ix) use the net proceeds of the Offering to fully fund the pre-clinical trials of Amanita Muscaria extract, AME-1 and to continue scientific research of AME-1 and for general corporate purposes;
(x) prepare and file all forms, documents, notices and certificates within prescribed time periods required by Securities Regulators in connection with the issuance and sale of the Offered Securities by the Corporation, so as to permit and enable such securities to be lawfully distributed on an exempt basis in the Offering Jurisdictions and any other jurisdictions where Offered Securities are offered and sold in accordance with this Agreement and the Subscription Agreements;
(xi) prior to the Closing Date:
a. promptly notify the Underwriters (and, if requested by the Underwriters, confirm such notification in writing) of any material change or change in a material fact (in either case, whether actual, anticipated, contemplated or threatened, financial or otherwise) or any event or development involving a prospective material change or a change in a material fact or any other material change in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital, ownership, control or management of the Corporation which would constitute a material change to, or a change in a material fact concerning the Corporation or any other change which is of such a nature; and
b. promptly, and in any event, within any applicable time limitation period, comply with all applicable filings and other requirements under applicable Securities Laws as a result of such change. During such period, the Corporation shall carry on and conduct its business in good faith discuss with the Underwriters as promptly as possible any fact or change in circumstances (actual, anticipated, contemplated or threatened, financial or otherwise) which is of such a proper and efficient manner and, subject nature that there is reasonable doubt as to whether notice in writing need be given to the express provisions hereof, it shall do or cause Underwriters pursuant to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunder.Section 4(xi)b.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Corporation.
(1) The Corporation hereby covenants to the Agents and agrees to the Purchasers, and acknowledges that each of them is relying on such covenants in connection with the Holder as followscompletion of the Offering, that:
(a) the Corporation covenants and agrees with will use commercially reasonable efforts to maintain its status as a “reporting issuer” (or the Holder that it shall repay all equivalent thereof) not in default under the Securities Laws of the Principal and any interest thereon to the Holder in accordance with the terms hereofOffering Jurisdictions;
(b) the Corporation shall give notice in writing forthwith allow the Agents and their representatives to conduct all due diligence investigations regarding the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default Corporation and the steps taken Subsidiaries that the Agents may reasonably require to remedy be conducted in connection with the sameOffering;
(c) on or before the Closing Date, the Corporation shall, and shall use its reasonable effort to cause the Trustee to enter into the Indentures. The Indentures shall be in such form and shall contain such terms as shall be consistent with the description of the terms of the Debentures and Warrants, as applicable, contained in this Agreement and the Subscription Agreements, subject to such changes as may be approved by the Agents and the Corporation;
(d) the Corporation shall use its best efforts to fulfill, at or before the Closing Date, each of the conditions set out in Section 7;
(e) the Corporation shall execute and deliver at or before the Closing Date, the Operative Agreements and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation;
(f) the Operative Agreements will be executed and delivered by the Corporation in compliance with the laws of its jurisdiction of incorporation and with the provisions of its certificate of incorporation and its notice of articles and articles;
(g) the Corporation shall ensure that all necessary corporate action will have been taken by the Corporation to authorize the issuance of the Securities;
(h) the Debentures and the Warrants that comprise the Units shall be duly and validly created, authorized and issued on payment of the Purchase Price therefor (or in the case of the Agents’ Securities, as consideration for the services performed by the Agents hereunder), such Debentures and Warrants having attributes corresponding in all material respects to the description thereof set forth in the Operative Agreements;
(i) upon exercise of the Warrants, the Debentures (other than the Initial Debentures) will be duly and validly created, authorized and issued, in accordance with their terms;
(j) on or prior to the Closing Date, the Corporation shall have reserved a sufficient number of Common Shares for issuance upon the conversion of the Debentures in accordance with their terms;
(k) in connection with the issuance and sale of the Units (or in the case of the Agents’ Units, the issuance as consideration for the services performed by the Agents hereunder), the Corporation will execute and file with Securities Regulators all forms, notices, reports and certificates required to be filed pursuant to applicable Securities Laws within the prescribed time periods;
(l) the Corporation will use its commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares, and any Common Shares issued upon conversion of the Debentures on the ExchangeExchange or another recognized stock exchange or quotation system following the Closing Date, provided that this covenant shall not prevent apply in the event the Corporation from completing any transaction which would result in completes the sale of all or substantially of its assets to a third party or its Common Shares ceasing (and any Common Shares that are issued upon conversion of the Debentures) are subject to be listed on a take-over or similar change of control transaction that is successfully completed and results in one person holding all of the Exchange so long as the holders of outstanding voting securities of the Corporation;
(m) until the Closing Date, the Corporation receive will advise the Agents, promptly after receiving notice or obtaining knowledge of: (i) the imposition of cease trading or similar orders affecting the Units or any other securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cashthe Corporation, or the holders of securities of Corporation have approved the transaction Subsidiaries, or the institution, threatened or in accordance with the requirements contemplation, of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceany proceeding for any such purpose; and
(eii) any request made by any Securities Regulators. The Corporation will use its best efforts to prevent the issuance of any such order and, if any such order is issued, to obtain the withdrawal thereof as quickly as possible;
(n) the Corporation agrees will not, directly or indirectly, offer, issue, sell or grant any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to pay acquire Common Shares or other equity securities of the Corporation for a period of 90 days after the Closing Date, without the prior written consent of the Lead Agent, such consent not to be unreasonably withheld, except in conjunction with: (i) the grant or exercise of stock options and other similar issuances pursuant to the Holder forthwith upon demand all costs, charges share incentive plan of the Corporation and expenses other share compensation arrangements; (including reasonable legal feesii) of, the exercise of outstanding warrants; (iii) obligations of the Corporation in respect of existing agreements; (iv) the conversion of the Debentures; or incurred (v) the issuance of securities by the Holder Corporation in connection with acquisitions in the realization normal course of business, including the Previously Announced Acquisitions;
(o) proceeds from the sale of the Units will be used to cover the costs, or a portion thereof, of the Previously Announced Acquisitions as well as for general purposes and administration costs of the Corporation; and
(p) if the minimum Offering is raised and the Corporation does not complete the Offering through no fault of the Agents, the Corporation agrees that it will retain the services of the Lead Agent with respect to any financing initiated within six months of the termination of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderAgreement (“Subsequent Financing”).
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants and agrees with to the Holder as followsAgents that the Corporation:
(a) shall prior to the Closing Time (and the Agents’ Option Closing Time, as applicable), allow the Agents (and their counsel and consultants) to conduct all due diligence which the Agents may reasonably require or consider necessary or appropriate in order to fulfill the Agents’ obligations as registrants to complete the Offering as provided herein. The Corporation will provide to the Agents (and their 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 Agents (or their counsel and consultants) may conduct, the Corporation covenants shall also make available its directors, senior management and agrees with counsel to answer any questions which the Holder that it Agents may have and to participate in one or more due diligence sessions to be held prior to Closing (or the Agents’ Option Closing, as applicable) (collectively, the “Due Diligence Session”). The Agents shall repay all distribute a list of the Principal and any interest thereon to the Holder written questions in accordance with the terms hereofadvance of each Due Diligence Session;
(b) shall forthwith advise the Corporation shall give notice Agents of, and provide the Agents with copies of, any written communications relating to:
(i) the issuance by any securities regulatory authority, including the TSX, of any order suspending or preventing the use of the Prospectus or any Prospectus Amendment or any cease trading or stop order or any halt in writing forthwith trading relating to the Holder of Common Shares or the occurrence institution or threat of any Event proceedings for that purpose; and
(ii) the receipt of Defaultany material communication from any securities regulatory authority, including the TSX, or other event which with lapse of time and/or giving of notice authority relating to the Prospectus or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying any Prospectus Amendment or the nature of such default and/or Event of Default and the steps taken to remedy the sameOffering;
(c) shall use its commercially reasonable best efforts to prevent the issuance of any order referred to in (b)(i) above and, if 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 soon as is reasonably practicable;
(d) 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 Canadian Selling Jurisdictions for as long as any Warrants or Additional Warrants remain outstanding, other than in a business combination or similar transaction where all the outstanding securities of the Corporation have been exchanged for cash or the securities of another issuer which is a reporting issuer under any Applicable Securities Laws;
(e) shall use its commercially reasonable best efforts to preserve and maintain its corporate existence and the listing of the Common Shares and the Warrants on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a TSX or such other recognized Canadian or U.S. stock exchange or cashquotation system as the Agents may approve, acting reasonably, for as long as any Warrants or Additional Warrants remain outstanding, other than in a business combination or similar transaction where all the outstanding securities of the Corporation have been exchanged for cash or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchangeanother issuer which is a reporting issuer under any Applicable Securities Laws;
(df) 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 of the Offered Units and/or Additional Warrants contemplated herein in the manner and subject to the express provisions hereof, qualifications described in the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to Prospectus Supplement under the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceheading “Use of Proceeds”; and
(eh) the Corporation agrees shall, as soon as practicable, use its commercially reasonable efforts to pay receive all necessary consents to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereundertransactions contemplated herein.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsAgents that:
(a) the Corporation covenants will promptly notify the Agents in writing if, prior to the Closing Time, there shall occur any material change or change in a material fact (in either case, whether actual, anticipated, contemplated or threatened and agrees with other than a change or fact relating solely to the Holder that it shall repay Agents) or any event or development involving a prospective material change or a change in a material fact in any or all of the Principal and any interest thereon to business, affairs, operations, assets, liabilities (contingent or otherwise), capital, ownership, control, management or prospects of the Holder in accordance with the terms hereofCorporation;
(b) unless it would be unlawful to do so or unless the Corporation, acting reasonably, determines that it would not be in the best interests of the Corporation shall give notice in writing forthwith to do so, the Holder of Corporation will accept each duly completed and executed Subscription Agreement on or before the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameClosing Time;
(c) the Corporation shall use commercially reasonable efforts will execute and deliver a Share Purchase Warrant Certificate and will cause to preserve and maintain its corporate existence and the listing of the Common be delivered a certificate representing Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on appropriate form registered in the Exchange so long as the holders name of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction each Purchaser in accordance with the requirements of instructions set forth in the applicable corporate and securities laws and the rules and policies of the ExchangeSubscription Agreement;
(d) subject the Corporation will have taken, on or prior to the express provisions hereofClosing Date, all necessary steps to ensure the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject Warrant Shares have been duly reserved for issue to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; andpersons entitled thereto;
(e) the Corporation agrees will execute and deliver the Agent Unit Certificates pursuant to pay written instructions received from Xxxx & Company Limited on behalf of the Agents;
(f) the Corporation will have taken, on or prior to the Holder forthwith upon demand Closing Date, all costsnecessary steps to ensure the Agent Unit Shares and the Agent Warrant Shares have been duly reserved for issuance to the persons entitled thereto;
(g) the Corporation will duly, charges punctually and expenses faithfully perform all of the obligations to be performed by it under the Subscription Agreements;
(including h) the Corporation will take all such steps as may be necessary to obtain all necessary approvals from all Regulatory Authorities in Canada having jurisdiction over the transactions contemplated by this Agreement, the Subscription Agreements and the Share Purchase Warrant Certificates, on or prior to the Closing Date;
(i) the Corporation will comply with all filing and other disclosure requirements under all applicable Canadian Securities Laws with respect to the Offering;
(j) the Corporation will use commercially reasonable legal feesefforts to maintain the listing of its Shares on the Stock Exchange (or a more senior stock exchange in North America) ofuntil the expiry date of the Share Purchase Warrants and Agent Warrants and for a period of 12 months thereafter;
(k) the Corporation will use commercially reasonable efforts to maintain its status as a reporting issuer not in default under applicable securities legislation in the provinces of Canada until the expiry date of the Share Purchase Warrants and for a period of 12 months thereafter;
(l) the Corporation will use commercially reasonable efforts to fulfil or cause to be fulfilled , at or incurred prior to the Closing Date, each of the Conditions required to be fulfilled by it as set out in Section 11; and
(m) the Corporation will provide all assistance reasonably requested by the Holder Agents in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any marketing activities of the monies owing hereunderAgents in respect of the Offering.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsUnderwriters that:
(a) the Corporation covenants Offered Units issued in connection herewith will be duly and agrees with validly created, authorized and issued pursuant to the Holder that it shall repay all terms of the Principal Documents and any interest thereon to the Holder in accordance with Common Shares comprising part of the terms hereofOffered Units will be issued as fully paid and non-assessable Common Shares;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance it will file with the requirements of applicable corporate CSE all required documents and securities laws pay all required filing fees, and do all things required by the rules and policies of the ExchangeCSE, in order to obtain prior to the Closing Date the requisite conditional acceptance or approval of the CSE for the Offering;
(c) it will file or cause to be filed, on a timely basis and within the time periods stipulated by U.S. Securities Laws, all forms, undertakings and other documents required to be filed by the Corporation under U.S. Securities Laws in connection with the offer and sale of the Offered Units in the United States; all fees payable in connection with such filings shall be at the sole expense of the Corporation;
(d) subject it will provide the Underwriters and their legal counsel with timely access to all information required to permit them to conduct a full due diligence investigation of the express provisions hereofCorporation and the Material Subsidiaries, including the business and operations of the Corporation before the Closing Date. In particular, the Underwriters will be permitted to conduct all due diligence that it may, in its sole discretion, require in order to fulfill its obligations, and in that regard, the Corporation shall carry and the Subsidiaries will make available to the Underwriters and their legal counsel and technical consultants, on a timely basis and conduct during normal business hours, all information necessary in order to complete the due diligence investigation of the business, affairs, operations and properties of the Corporation and the Subsidiaries as well as the respective principals and employees of the Corporation and the Subsidiaries. The Corporation will use its business commercially reasonable efforts to make whatever arrangements are necessary with senior management and the Chair of the Audit Committee of the Corporation, its legal counsel, auditors, qualified persons and other applicable experts to permit them to participate in a proper and efficient manner andany due diligence investigations or meetings requested by the Underwriters;
(e) it will use commercially reasonable efforts to complete the Offering at the Closing Time, subject to filing final materials with the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceCSE; and
(ef) it will take all reasonable steps necessary to enable the Offered Units to be sold on a private placement basis in the Qualifying Jurisdictions by way of exemptions from the prospectus or registration statement filing requirements of Applicable Securities Laws and otherwise fulfill all legal requirements required to be fulfilled by the Corporation agrees to pay to the Holder forthwith upon demand (including, without limitation, compliance with all costs, charges and expenses (including reasonable legal feesApplicable Securities Laws) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderOffered Units.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Corporation. The Corporation hereby covenants to the Agent and agrees with to each of the Holder as followsPurchasers and their permitted assigns, and acknowledges that each of them is relying on such covenants in purchasing the Special Warrants, that the Corporation shall:
(a) duly execute the Corporation covenants Subscription Agreements which have been duly completed by the Purchasers, the Special Warrant Certificates and agrees with the Holder that Special Warrant Indenture, and duly and punctually perform all the obligations to be performed by it shall repay all of under this Agreement, the Principal Subscription Agreements, the Special Warrant Certificates and any interest thereon to the Holder in accordance with the terms hereofSpecial Warrant Indenture;
(b) the Corporation shall give notice in writing forthwith fulfil or cause to be fulfilled, at or prior to the Holder Closing Date, each of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would conditions required to be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken fulfilled by it pursuant to remedy the samethis Agreement;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and obtain the listing approval of the Common TSX and NYSE Amex to list the Shares, Warrant Shares and Compensation Warrant Shares on the Exchange, provided such stock exchanges on that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity date which is listed on a recognized Canadian or U.S. stock exchange or cashfour months and one day after the Closing Date, or the holders of securities of Corporation have approved the transaction subject only to standard listing conditions in accordance with the requirements of applicable corporate and securities laws and the rules and policies respect of the ExchangeTSX and subject only to official notice of issuance if required in respect of NYSE Amex;
(d) use commercially reasonable efforts obtain the approval of the TSX to list the Warrants on such stock exchange on that date which is four months and one day after the Closing Dates, subject only to the express provisions hereofstandard listing conditions of the TSX;
(e) fulfil all legal requirements to permit the creation, issuance, offering and sale of the Corporation shall carry on Special Warrants as contemplated in this Agreement and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do file or cause to be done filed all things necessary documents, applications, forms or undertakings reasonably required to preserve be filed by the Corporation and keep take or cause to be taken all action reasonably required to be taken by the Corporation in full force connection with the purchase and effect its corporate existencesale of the Special Warrants so that the distribution of the Special Warrants may lawfully occur by way of exemption from the requirement to file a prospectus in Canada or a registration statement in the United States or similar document in any other jurisdiction;
(f) until the Exercise Date shall have occurred, use commercial reasonable efforts to promptly provide to the Agent and the Finder, prior to the publication, filing or issuance thereof, any communication to the public;
(g) ensure that the Special Warrants and Compensation Warrants when issued on the Closing Date contain all material attributes substantially in the form described in this Agreement and that the Shares and Warrants, the Warrant Shares and the Compensation Warrant Shares duly reserved and allotted for issuance upon the due exercise of the Special Warrants, Warrants or Compensation Warrants, as the case may be, in accordance with their terms;
(h) ensure that the Special Warrants (upon payment therefor), the Shares and Warrants (upon the deemed exercise of the Special Warrants), the Compensation Warrants, the Warrant Shares (upon due exercise of the Warrants) and the Compensation Warrant Shares (upon due exercise of the Compensation Warrants) will be validly issued as fully paid and non-assessable securities in the capital of the Corporation;
(i) comply with each of the covenants of the Corporation set out in the Subscription Agreements and the Special Warrant Indenture; and
(ej) the Corporation agrees use commercially reasonable efforts to pay obtain, at or prior to the Holder forthwith upon demand all costsEscrow Deadline, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderShareholder Approval.
Appears in 1 contract
Samples: Agency Agreement (Vista Gold Corp)
Covenants of the Corporation. The Corporation hereby covenants to the Lead Agent and agrees to the Purchasers and their permitted assigns, and acknowledges that each of them is relying on such covenants in connection with the Holder Offering, that the Corporation (including its successors and assigns if applicable) and the Subsidiary will, as followsapplicable:
(ai) allow the Lead Agent and their representatives to conduct all due diligence regarding the Corporation covenants and agrees with the Holder that it shall repay all of Subsidiary which the Principal and any interest thereon Lead Agent may reasonably require to be conducted prior to the Holder in accordance with the terms hereofClosing Date;
(bii) the Corporation shall give notice use its commercially reasonable efforts to remain a corporation licensed, registered or qualified as an extra-provincial or foreign corporation in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying all jurisdictions where the nature of the activities conducted by it makes such default and/or Event licensing, registration or qualification necessary and shall carry on its business in the ordinary course and in, except in compliance with U.S. Federal Cannabis Laws, compliance in all material respects with all applicable Laws, rules and regulations of Default and the steps taken to remedy the sameeach such jurisdiction;
(ciii) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and status as a "reporting issuer" under the Securities Laws of at least one jurisdiction of Canada not in default of any requirements of such Securities Laws, provided that this provision shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction whereby the Corporation ceases to be a “reporting issuer”;
(iv) use commercially reasonable efforts to maintain the listing of the Common Shares on the ExchangeCSE or such other recognized stock exchange or quotation system in Canada, provided that this covenant provision shall not prevent be construed as limiting or restricting the Corporation from completing any a consolidation, amalgamation, arrangement, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction which would result in whereby the Corporation's Common Shares ceasing cease to be listed on listed; DBDC02\DMS\WDOCS\CLNTFLS\5221\009\D0019749
(v) use its commercially reasonable efforts to fulfil or cause to be fulfilled, at or prior to the Exchange so long Closing Time, each of the conditions required to be fulfilled by it set out in Section 7;
(vi) duly execute and deliver this Agreement, the Subscription Receipt Agreement, the Subscription Agreements, the certificates representing the Subscription Receipts, if any, and the Compensation Option Certificates at the Closing Time and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation;
(vii) subject to applicable law, obtain the prior approval of the Lead Agent as to the holders content and form of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, any press release relating to the Offering or the holders Business Acquisition, such approval not to be unreasonably delayed or withheld;
(viii) following satisfaction of securities the Escrow Release Conditions, use the net proceeds of Corporation have approved the transaction Offering to expand CBD production capacity at the Corporation's extraction facility in Romania, for strategic acquisition opportunities and for general working capital purposes;
(ix) ensure that the Subscription Receipts on payment of the Offering Price therefor are duly and validly created, authorized and issued to the Purchasers in accordance with the requirements terms of applicable corporate the Subscription Agreements and securities laws have attributes corresponding in all material respects to the description set forth in this Agreement, the Subscription Agreements and the rules and policies of the ExchangeSubscription Receipt Agreement;
(dx) subject ensure that, in respect of the Subscription Receipts, at all times prior to the express provisions hereofrepurchase or expiry thereof, sufficient Common Shares are allotted and reserved for issuance upon exercise of the Subscription Receipts;
(xi) ensure that the Common Shares partially comprising the Units shall be duly issued as fully paid and non-assessable shares in the capital of the Corporation upon conversion of the Subscription Receipts in accordance with their terms;
(xii) ensure that the Warrants shall be validly created and issued and shall have attributes corresponding in all material respects to the description thereof set forth in this Agreement, the Corporation shall carry on Subscription Agreements and conduct its business in a proper and efficient manner and, subject the Warrant Indenture;
(xiii) ensure that at all times prior to the express provisions hereofexpiry of the Warrants, it a sufficient number of Warrant Shares are allotted and reserved for issuance upon the due exercise of the Warrants in accordance with their terms;
(xiv) ensure that the Warrant Shares, upon the due exercise of the Warrants in accordance with their terms, shall do or cause be duly issued as fully paid and non-assessable shares in the capital of the Corporation on payment of the purchase price therefor;
(xv) ensure that the Compensation Options shall be validly created and issued and shall have attributes corresponding in all material respects to the description set forth in this Agreement and the Compensation Option Certificates;
(xvi) ensure that at all times prior to the expiry of the Compensation Options, a sufficient number of Compensation Option Shares and Compensation Option Warrant Shares are DBDC02\DMS\WDOCS\CLNTFLS\5221\009\D0019749 allotted and reserved for issuance upon the due exercise of the Compensation Options and the Compensation Option Warrants in accordance with their terms;
(xvii) ensure that, upon due exercise of the Compensation Options in accordance with their terms, the Compensation Option Shares shall be duly issued as fully paid and non- assessable shares in the capital of the Corporation on payment of the purchase price therefor;
(xviii) ensure that the Compensation Option Warrants shall be validly created and issued and shall have attributes corresponding in all material respects to the description thereof set forth herein and in the Warrant Indenture;
(xix) ensure that at all times prior to the expiry of the Compensation Option Warrants, a sufficient number of Compensation Option Warrant Shares are allotted and reserved for issuance upon the due exercise of the Compensation Option Warrants in accordance with their terms;
(xx) ensure that, upon due exercise of the Compensation Option Warrants in accordance with their terms, the Compensation Option Warrant Shares shall be duly issued as fully paid and non-assessable shares in the capital of the Corporation on payment of the purchase price therefor;
(xxi) execute and file with the Securities Regulators all forms, notices and certificates relating to the Offering required to be done filed pursuant to the Securities Laws in the time required by applicable Securities Laws, including, for greater certainty, all things forms, notices and certificates set forth in the opinions delivered to the Lead Agent pursuant to this Agreement required to be filed by the Corporation;
(xxii) promptly notify the Lead Agent of the receipt by the Corporation, or the Subsidiary of any notice by and judicial or regulatory authority or any stock exchange requesting any information, meeting or hearing relating to such entity for or in respect of the Offering;
(xxiii) from the date hereof until 90 days following the earlier of the date the Escrow Release Conditions are satisfied, the Escrow Deadline or the Termination Date, not issue any additional equity or quasi-equity securities without prior written consent of the Lead Agent, such consent not to be unreasonably withheld, except in conjunction with: (i) the grant or exercise of stock options and other similar issuances pursuant to incentive plans of the Corporation and other share compensation arrangements in effect as of the Closing Date; (ii) outstanding convertible securities; (iii) obligations in respect of existing agreements; and (iv) the issuance of securities in connection with bona fide property or share acquisitions in the normal course of business;
(xxiv) not enter into any pre-Closing reorganizations without the consent of the Lead Agent, such consent not to be unreasonably withheld;
(xxv) ensure that in conducting the Business, (i) the Corporation and its Subsidiary will apply for and obtain all material Authorizations required from any Governmental Authority having jurisdiction to the extent necessary for the Corporation and its Subsidiary to preserve conduct the Business as it is currently conducted and keep presently proposed to be conducted (provided that it need only obtain such Authorizations in respect of any proposed DBDC02\DMS\WDOCS\CLNTFLS\5221\009\D0019749 operations prior to such time as such operations are commenced); (ii) it and its Subsidiary will comply with the terms and conditions of all such Authorizations; and
(iii) it and its Subsidiary shall use commercially reasonable efforts to ensure that all of such Authorizations will be valid and in full force and effect its corporate existence; and
(e) the Corporation agrees as required from time to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunder.time;
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants to and agrees with the Holder as followsAgent that it will:
(a) fulfil all legal requirements to permit the Corporation covenants creation, issuance, offering and agrees sale of the Units (including the securities comprising and underlying same) as contemplated in this Agreement including, without limitation, compliance with the Holder that it shall repay all Securities Laws to enable the Units to be offered for sale and sold to Purchasers without the necessity of filing a prospectus in the Principal and any interest thereon to the Holder in accordance with the terms hereofQualifying Province;
(b) use its reasonable best efforts to arrange for the Corporation shall give notice in writing forthwith to the Holder posting for trading of the occurrence of any Event of DefaultShares, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy Warrant Shares and the sameCompensation Shares on the OTC Bulletin Board as soon as possible under applicable securities laws;
(c) the Corporation shall use commercially its reasonable best efforts to preserve and maintain its corporate existence and the listing quotation of certain of the Common Shares on the ExchangeOTC Bulletin Board and maintain its status as a registrant;
(d) prepare and file the Preliminary Prospectus and other related documents relating to the proposed distribution of Shares, provided Warrant Shares and Compensation Shares in each of the Qualifying Provinces and use its best efforts to do so as soon as possible;
(e) both before and after the Qualification Deadline, resolve as soon as reasonably practicable any regulatory deficiencies in respect of the Preliminary Prospectus on a basis acceptable to the Agent, acting reasonably, and, as soon as reasonably practicable after such deficiencies have been resolved or satisfied, prepare, file and use its best efforts to obtain receipts under the applicable legislation of each of the Qualifying Provinces for the Prospectus and take all other steps and proceedings that this covenant shall not prevent may be necessary in order to qualify the Corporation from completing any transaction which would result Shares, Warrant Shares and (subject to the limitations of the Proposed Rule) Compensation Shares for distribution or distribution to the public in the Common Shares ceasing Qualifying Provinces as soon as possible;
(f) prior to the filing of the Preliminary Prospectus and thereafter and prior to the filing of the Prospectus and any Supplementary Material, permit the Agent and its counsel to participate fully in the preparation of such documents and allow the Agent and its counsel to conduct all due diligence which the Agent may reasonably require to conduct in order to fulfil its obligations under the Securities Laws and in order to enable the Agent responsibly to execute any certificate required to be listed executed by the Agent in connection with the Preliminary Prospectus, the Prospectus or any Supplementary Material;
(g) if the Prospectus is not filed and receipts issued therefor by the securities regulatory authorities in the Qualifying Provinces where a Purchaser is resident on or before the Exchange so long as Qualification Deadline, issue to persons who exercise their Share Purchase Warrant after the holders Qualification Deadline, without payment of securities any additional consideration, a revised number of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction Warrant Shares in accordance with the adjustment provisions provided for in the Share Purchase Warrants;
(h) ensure that at the respective times of filing and at all times subsequent to the filing thereof during the distribution of the Shares and Warrant Shares, the Preliminary Prospectus, Prospectus and any Supplementary Material will fully comply with the requirements of applicable corporate and securities laws legislation, provided that the foregoing shall not apply with respect to statements contained in such documents relating solely to the Agent and the rules Corporation hereby acknowledges and policies agrees that the Agent shall be under no obligation to sign the certificate page of the ExchangePreliminary Prospectus, the Prospectus or any Supplementary Material until it is satisfied in its sole discretion, that the Securities Laws of the Qualifying Provinces have been complied with;
(di) subject deliver in Toronto, within three Business Days of the issue of a receipt for the Preliminary Prospectus and the Prospectus, as the case may be, and within three Business Days of execution of any Supplementary Material, without charge to the express provisions hereofAgent, as many copies of the Preliminary Prospectus, the Prospectus and any Supplementary Material as the Agent may reasonably request for the purposes contemplated hereunder and contemplated by the Securities Act (Ontario), and such delivery shall constitute: (A) the consent of the Corporation shall carry on to use such documents in connection with the distribution or the distribution to the public, as the case may be, of the Shares and conduct its business in a proper and efficient manner andWarrant Shares, subject to the express provisions hereofof the securities legislation of the Qualifying Provinces; and (B) the Corporation's representation and warranty to the Agent that, it shall do at the time of delivery, the information and statements contained therein (except information and statements relating solely to or provided by the Agent) contain no misrepresentation and constitute full, true and plain disclosure of all material facts relating to the Offering, the Corporation and the Common Shares;
(j) cause to be done all things necessary delivered to preserve the Agent concurrently with the filing of the Prospectus and keep any Supplementary Material, comfort letters of the auditors of the Corporation in full force each case dated the date of the Prospectus or the Supplementary Material to which such letter relates (as the case may be) addressed to the Agent and effect its corporate existenceto the directors of the Corporation, in form and substance satisfactory to the Agent acting reasonably, relating to the financial statements to be included in the Prospectus and any Supplementary Material and verifying in accordance with U.S. Generally Accepted Accounting Principles, the financial information, accounting data and other numerical data contained in the Prospectus or any Supplementary Material and matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus to a date not more than two Business Days prior to the date of such letter; and
(ek) forthwith after the Closing, to file such documents as may be required under the Securities Laws of the Qualifying Provinces relating to the private placement of the Units which, without limiting the generality of the foregoing, shall include a Form 45-501F as prescribed by Rule 45-501 under the Securities Act (Ontario) and the equivalent thereof in the other Qualifying Provinces. The obligation of the Agent to execute any certificate or deliver any documents pertaining to the Preliminary Prospectus, the Prospectus or any Supplementary Material shall be conditional upon compliance by the Corporation agrees to pay to the Holder forthwith upon demand all costsdate of such execution and delivery with those covenants contained in this Agreement to be complied with prior to the filing of the Preliminary Prospectus, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture Prospectus or any part thereof, or in recovering or enforcing payment of any of Supplementary Material as the monies owing hereundercase may be.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder Agent as follows:
(a) from the effective date hereof to the Closing Time (or the respective time of filing of the Preliminary Prospectus and Final Prospectus and all times subsequent to such filing during the distribution of the subject securities) the Corporation covenants and agrees with will promptly inform the Holder that it shall repay all Agent of the Principal and full particulars of: (i) any interest thereon to actual, anticipated or threatened material change, change in material fact or the Holder occurrence of a material fact or event, which, in accordance any such case, is, or may be, of such nature to: (A) render any portion of the due diligence conducted by the Agent or the Agent’s counsel, including the results of the Due Diligence Session, untrue, false or misleading in any material respect; (B) result in a misrepresentation in any of the due diligence documentation reviewed by the Agent or Agent’s counsel or during the Due Diligence Session; (C) result in the Preliminary Prospectus or Final Prospectus containing a misrepresentation; or (D) result in the Corporation not complying with the terms hereofApplicable Securities Laws;
(b) if the Corporation is uncertain as to whether a material change, change in material fact, occurrence of a material fact or event of the nature referred to in this aforementioned subparagraph has occurred, the Corporation shall give notice in writing forthwith to promptly inform the Holder Agent of the full particulars of the occurrence of any Event of Default, or other event which giving rise to the uncertainty and shall consult with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature Agent as to whether the occurrence is of such default and/or Event of Default and the steps taken to remedy the samea nature;
(c) as soon as reasonably possible, and in any event by a Closing Date the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence take all such steps as may be required by the Agent and the listing Agent’s counsel to enable the Special Warrants to be offered for sale and sold on a private placement basis to Subscribers in the Selling Jurisdictions that qualify as “accredited investors” under Applicable Securities Laws through the Agent or any other investment dealers or brokers registered in any of the Common Shares on Selling Jurisdictions by way of the Exchangeexemptions set forth in Applicable Securities Laws of each of the Selling Jurisdictions, provided provided, however, that this covenant the Corporation shall not prevent be required to qualify as a foreign corporation in any state, to consent to service of process in any state other than with respect to claims related to the Corporation from completing Offering or to comply with any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian continuous disclosure or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchangeother similar requirements;
(d) subject to the express provisions hereof, the Corporation shall carry on will make all filings necessary with each applicable Securities Commission and conduct its business pay all applicable fees in a proper and efficient manner and, subject to connection with the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep Offering in full force compliance with the manner and effect its corporate existence; andwithin the time limits prescribed by Applicable Securities Laws;
(e) the Corporation agrees shall duly, faithfully and punctually perform all the obligations to pay be performed by it and comply with its covenants and agreements hereunder and under the Transaction Documents and the CPRIT Agreement;
(f) the Corporation shall use the proceeds from the issuance and sale of the Special Warrants for pre-clinical and clinical development of the prostate cancer program and for general corporate purposes;
(g) the Corporation shall use its best efforts to maintain its status as a “specified small business corporation” (within the meaning of the Income Tax Act (Canada)) at all times until the completion of an IPO or RTO and shall not take any action that would cause or contribute to prevent the Corporation from maintaining such status;
(h) the Corporation shall, as soon as practicable following the Closing Date, use its commercially reasonable efforts to prepare, file and have a receipt issued for the Preliminary Prospectus under the Applicable Securities Laws of the Qualifying Jurisdictions qualifying the distribution of: (i) the Preferred Shares issuable on the exercise or deemed exercise of the Special Warrants to holders of the Special Warrants and (ii) the Broker Warrants to holders of the Special Broker Warrants;
(i) the Corporation shall use its commercially reasonable efforts to: (i) settle as expeditiously as possible all comments made by the Canadian Securities Regulators on the Preliminary Prospectus, (ii) as soon as practicable thereafter prepare, file and have a receipt issued for the Final Prospectus under the Applicable Securities Laws of the Qualifying Jurisdictions and (iii) take all other steps and proceedings that may be reasonably necessary to be taken by the Corporation in order to qualify the subject securities for distribution in each of the Qualifying Jurisdictions under Applicable Securities Laws as soon as practicable following the Closing Date;
(j) the Corporation shall allow the Agent to: (A) review drafts of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material that the Corporation is required to file under Applicable Securities Laws in connection therewith and provide comments thereon, which comments shall be considered in good faith by the Corporation (B) conduct all due diligence and provide all such information which the Agent may reasonably require in order to fulfill its obligations as Agent and in order to enable the Agent to execute the relevant certificate required to be executed by the Agent;
(k) the Corporation will promptly inform the Agent after receiving notice or obtaining knowledge thereof, of:
(i) the issuance by any Canadian Securities Regulator of any order suspending or preventing the use of the Preliminary Prospectus, the Final Prospectus or any Supplementary Material or the institution, threatening or contemplation of any proceeding for any such purposes;
(ii) any order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation having been issued by any Canadian Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or
(iii) any requests made by any Canadian Securities Regulator 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;
(l) the Corporation will deliver to the Holder forthwith upon demand all costsAgent, charges and expenses (including reasonable legal fees) without charge, contemporaneously with, or prior to the filing of, the Final Prospectus, unless otherwise indicated:
(i) a copy of any document filed with, or incurred delivered to, the Canadian Securities Regulators by the Holder Corporation under Applicable Securities Laws with the Final Prospectus;
(ii) a certificate dated the date of the Final Prospectus, addressed to the Agent and signed by the Chief Executive Officer or Chief Financial Officer of the Corporation, certifying for and on behalf of the Corporation, and not in their personal capacity, after having made due inquiries, with respect to the following matters:
(A) the Corporation having complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the date of the Final Prospectus;
(B) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation having been issued and no proceeding for such purpose being pending or, to the knowledge of such officer, threatened;
(C) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement being true and correct as at the realization date of the Final Prospectus, with the same force and effect as if made on and as at the date of the Final Prospectus, after giving effect to the transactions contemplated by this Debenture Agreement; and
(D) since the Closing Time, there having been no material adverse change, financial or otherwise, in the assets, liabilities (contingent or otherwise), capital, business or results of operations of the Corporation;
(m) the Corporation shall cause to be delivered to the Agent concurrently with the filing of the Final Prospectus or any part thereofamendment thereto (i) a comfort letter from the Corporation’s Auditors dated the date of the Final Prospectus addressed to the Agent, in form and substance satisfactory to the Agent and directors of the Corporation, acting reasonably, relating to the financial and accounting information relating to the Corporation contained in the Final Prospectus, which letter shall be based on a review by the Corporation’s Auditor’s within a cut-off dated of not more than [two] Business Days prior to the date of the letter, which letter shall be in addition to the auditor’s consent and comfort letter addressed to the Canadian Securities Regulators;
(n) the Corporation shall use its commercially reasonable best efforts to obtain the conditional approval of a Recognized Exchange for the listing of its Common Shares by no later than the earlier of: (A) six months from the date the Corporation becomes a “reporting issuer” under Applicable Securities Laws and (B) June 5, 2015; and
(o) the Corporation will refuse to register any transfer of Securities not made in accordance with the provisions of Regulation S, pursuant to registration under the 1933 Act, or in recovering or enforcing payment of any of the monies owing hereunderpursuant to an available exemption from such registration.
Appears in 1 contract
Samples: Agency Agreement (ESSA Pharma Inc.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) the Corporation covenants and agrees with the Holder Agents and the Purchasers, and acknowledges that it shall repay all each of them is relying on such covenants in connection with the purchase by the Purchasers of the Principal and any interest thereon Offered Shares that:
(a) prior to the Holder Closing Time, the Corporation will have allowed the Agents the opportunity to conduct required due diligence and to obtain, acting reasonably, satisfactory results from such due diligence and in accordance with particular, the terms hereofCorporation will have allowed the Agents and Agents' Counsel to conduct all due diligence sessions which the Agents may reasonably require and, in this regard, without limiting the scope of the due diligence inquiries that the Agents and auditors may conduct, the Corporation will make available its senior management and directors to participate in one or more due diligence telephone calls (the "Due Diligence Sessions") prior to the Closing Date to answer in person any questions that the Agents may have and the Lead Agent will distribute a list of written questions to be answered and the Corporation will have provided oral or written responses to such questions at such Due Diligence Sessions;
(b) the Corporation shall give notice will enter into duly and fully completed Subscription Agreements, accompanied by properly completed applicable schedules thereto and the subscription amount, with the subscribers and, unless the Corporation reasonably believes that it would be unlawful to do so or in writing forthwith breach of any Applicable Securities Laws or the number of Offered Shares subscribed for pursuant to the Holder Subscription Agreement exceeds the maximum number of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would Offered Shares to be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default sold under this Agreement and the steps taken Offering, will fully accept the subscriptions in each Subscription Agreement submitted to remedy the sameCorporation accompanied by properly completed applicable schedules thereto, as applicable, and the required subscription funds;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing will comply with each of the Common Shares on the Exchange, provided that this covenant shall not prevent covenants of the Corporation from completing any transaction which would result set out in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the ExchangeSubscription Agreements;
(d) subject to the express provisions hereof, the Corporation shall carry on will make all necessary filings, use its commercially reasonable efforts to obtain all necessary regulatory consents and conduct its business in a proper approvals, including approvals required by Applicable Securities Laws and efficient manner andExchange Approval, subject to and the express provisions hereof, it shall do or cause Corporation will pay all filing fees required to be done all things necessary to preserve paid in connection with the transactions contemplated in this Agreement and keep in full force and effect its corporate existence; andthe Offering Documents;
(e) the Corporation agrees to pay to the Holder forthwith upon demand will prepare and file all costsforms, charges documents, notices and expenses (including reasonable legal fees) of, or incurred certificates within prescribed time periods required by the Holder Securities Commissions in connection with the realization issuance and sale of the Offered Shares by the Corporation, so as to permit and enable such securities to be lawfully distributed on an exempt basis in the Selling Jurisdictions and any other jurisdictions where Offered Shares are offered and sold in accordance with this Agreement and the Subscription Agreements;
(f) the Corporation will promptly provide to the Agents, for review and approval by the Agents and Agents' Counsel (each acting reasonably and promptly), prior to filing or issuance of the same, any press release of the Corporation prior to the Closing Date and any press releases issued by the Corporation concerning the Offering;
(g) during the period commencing on the date hereof and ending on the Closing Date, the Corporation will promptly inform the Agents of the full particulars of any request of any Securities Commission or the Exchange for any information, or the receipt by the Corporation of any communication from any Securities Commission, the Exchange or any other competent Governmental Authority relating to the Corporation or which may be relevant to the distribution of the Offered Shares. Without limiting the foregoing, the Corporation will advise the Agents, promptly after receiving notice or obtaining knowledge thereof, of:
(i) the institution, threatening or contemplation of any proceeding for any such purpose; or
(ii) 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 Shares) having been issued by any Securities Commission or the institution, threatening or contemplation of any proceeding for any such purposes;
(h) the Corporation will use best efforts to remain, and to cause the Material Subsidiaries to remain, a corporation, validly subsisting under the laws of its jurisdiction of incorporation amalgamation, continuation or organization, as applicable, and to be duly licensed, registered or qualified as an extra-provincial or foreign corporation, respectively, in all jurisdictions where the character of its properties owned or leased or the nature of the activities conducted by it make such licensing, registration or qualification necessary and to carry on its business in the ordinary course and in compliance in all material respects with all Applicable Laws, rules and regulations of each such jurisdiction;
(i) the Corporation 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 Applicable Securities Laws in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Xxxxxx Xxxxxx Island, Québec, Saskatchewan, and Yukon, provided that the foregoing requirement is subject to the obligations of the directors to comply with their fiduciary duties to the Corporation and shall not limit or be construed as limiting or restricting the Corporation from completing any consolidation, amalgamation, arrangement, business combination, sale of all or substantially all of the Corporation's assets, take-over bid, merger or other similar transaction;
(j) the Corporation will use its commercially reasonable efforts to maintain the listing of the Shares (including those issuable pursuant to the Offering) on the Exchanges or such other recognized stock exchange or quotation system as the Agents may approve, acting reasonably, for a period of at least 24 months following the Closing Date, provided that the foregoing requirement is subject to the obligations of the directors to comply with their fiduciary duties to the Corporation and shall not limit or be construed as limiting or restricting the Corporation from completing any consolidation, amalgamation, arrangement, business combination, sale of all or substantially all of the Corporation's assets, take-over bid, merger or other similar transaction;
(k) the Corporation will promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Agents may reasonably require from time to time for the purpose of giving effect to the Offering Documents and the Corporation will use its commercially reasonable efforts to implement to their full extent the provisions, and to satisfy the conditions, of each of the Offering Documents;
(l) the Corporation will file, or cause to be filed, all forms or undertakings required to be filed by the Corporation in connection with the issue and sale of the Offered Shares (including a Form 45-106F1 of NI 45-106, Form 72-503F and any filings required under state blue-sky laws, as required, with the applicable Securities Regulators and United States state regulatory authorities, as applicable) so that the distribution of the Offered Shares to the Purchasers may lawfully occur without the necessity of filing a prospectus, registration statement or other offering document in Canada or other jurisdictions (but on terms that will permit the Offered Shares acquired by the Purchasers to be sold by such Purchasers at any time in the Selling Jurisdictions, subject to applicable hold periods under Applicable Laws). All prescribed fees payable in connection with such filings will be at the sole expense of the Corporation;
(m) the Corporation will forthwith notify the Agents of any breach of any covenant of this Debenture Agreement or any part thereofother Offering Document, by any party thereto, or upon it becoming aware that any representation or warranty of the Corporation contained in recovering this Agreement or enforcing payment any other Offering Document, is or has become untrue or inaccurate in any material respect;
(n) the Corporation will make available management of the Corporation for meetings with investors as scheduled by the Agents at the discretion of the Agents, acting reasonably and upon reasonable notice to the Corporation;
(o) the Corporation shall use its commercially reasonable efforts to cause each of the Corporation's directors and senior executive officers to enter into a lock-up agreement (collectively, the “Lock Up Agreements”) on or prior to the closing of the Offering, whereby the holder agrees not to, directly or indirectly, offer, sell, transfer, pledge, assign, lend, swap or enter into any other agreement to transfer the economic consequences of, or otherwise dispose or deal with, whether through the facilities of a stock exchange, by private placement or otherwise, or announce any intention to do any of the monies owing hereunderforegoing, any of the securities of the Corporation owned, for a period of 120 days after the date of such lock-up agreements, subject to the customary exceptions, without the prior written consent of the Lead Agent such consent not to be unreasonably withheld;
(p) except as contemplated by this Agreement, the Corporation will not, without the prior written consent of the Lead Agent (not to be unreasonably withheld, delayed or denied), on behalf of the Agents, directly or indirectly issue, offer to sell or otherwise dispose of or enter into any transaction to sell or issue or announce the issue of, any equity securities of the Corporation, or any securities convertible into, or exercisable, or exchangeable for, any equity securities of the Company, from the date hereof until the date that is 120 days following the execution of this Agreement, except: (i) pursuant to this Agreement; (ii) the grant or exercise of equity compensation pursuant to the Company's existing equity compensation plans; (iii) the issuance of Common Shares upon the exercise or conversion of any options or warrants or other convertible securities outstanding as of the date of this Agreement; and (iv) the issuance of securities in connection with asset or share acquisitions, or other strategic, consulting, licensing, joint venture or similar transactions;
(q) the Corporation will use its commercially reasonable efforts to fulfil or cause to be fulfilled, at or prior to the Closing Time, each of the conditions applicable to the Corporation set out in Article 9 that are within its control (unless waived by the Agents); and
(r) the Corporation will ensure that, at the Closing Time, the Offered Shares are duly and validly created, authorized and issued on payment of the purchase price therefor and have attributes corresponding in all material respects to the description thereof set forth in this Agreement.
Appears in 1 contract
Samples: Agency Agreement (Cybin Inc.)
Covenants of the Corporation. The Corporation hereby covenants to the Agents and agrees to the Purchasers and their permitted assigns, and acknowledges that each of them is relying on such covenants in connection with the Holder as followstransactions contemplated by this Agreement, that the Corporation (including its successors and assigns if applicable) will:
(ai) allow the Agents and their representatives to conduct all due diligence regarding the Corporation which the Agents may reasonably require to be conducted prior to the Closing Date, including making its senior management, legal counsel and auditors available to answer any questions which the Agents or their counsel may have and to participate in one or more due diligence sessions to be held prior to Closing;
(ii) use its commercially reasonable efforts to fulfil or cause to be fulfilled, at or prior to the Closing Time, each of the conditions required to be fulfilled as set out in Section 6;
(iii) duly execute and deliver the Offering Documents and the Broker Warrant Certificates at the Closing Time, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by them in all material respects;
(iv) subject to Applicable Law, obtain the prior approval of the Co-Lead Agents as to the content and agrees form of any press release relating to the Offering, the Business and the Business Combination, such approval not to be unreasonably withheld, delayed or denied;
(v) give effect to the Business Combination as it relates to the Corporation forthwith following the release of the Escrowed Funds upon the satisfaction of the Escrow Release Conditions;
(vi) allow the Co-Lead Agents and their counsel a reasonable opportunity to review and comment on any documents relating to the Business Combination;
(vii) following the Escrow Release Date, use the net proceeds of the Offering substantially in the manner described in the Term Sheet;
(viii) ensure that the Offered Securities, on payment therefor, are duly and validly created, authorized and issued and shall have attributes corresponding in all material respects to the description set forth in this Agreement and the Subscription Receipt Agreement;
(ix) ensure that the Common Shares, upon issuance, shall be validly issued as fully paid and non-assessable and shall have the attributes corresponding in all material respects to the description thereof set forth in this Agreement and the Subscription Agreements;
(x) execute and deliver or file with the Holder that it shall repay Securities Regulators as required all forms, notices and certificates relating to the Offering required to be filed pursuant to the Securities Laws in the time required by applicable Securities Laws, including, for greater certainty, all forms, notices, offering memoranda and certificates;
(xi) prior to the Closing Time, use commercially reasonably efforts to cause each of the Principal officers, directors and any interest thereon securityholders of the Corporation listed in Schedule "B" (each, a "Locked Up Holder"), to enter into an undertaking in favour of the Agents in form and substance satisfactory to the Holder Co-Lead Agents, on behalf of the Agents (the "Lock-Up Undertakings"), pursuant to which such person shall agree not to, and will not permit any of his, her or its affiliates (as such term is defined in the OBCA) to, directly or indirectly, offer, sell, contract to sell, lend, swap, or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with, or publicly announce any intention to offer, sell, contract to sell, grant or sell any option to purchase, hypothecate, pledge, transfer, assign, purchase any option or contract to sell, lend, swap, or enter into any agreement to transfer the economic consequences of, or otherwise dispose of or deal with, whether through the facilities of a stock exchange, by private placement or otherwise any common shares in the capital of the Resulting Issuer, or other securities convertible into or exercisable or exchangeable for common shares in the capital of the Resulting Issuer for a period of 120 days after the Escrow Release Date (subject to earlier termination in accordance with the terms hereofof the Lock-Up Undertaking), unless, subject to the exceptions set out in the Lock-Up Undertaking, they first obtain the prior written consent of the Co-Lead Agents, on behalf of the Agents, which consent will not be unreasonably withheld or delayed;
(bxii) promptly notify the Agents of the receipt by the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Defaultnotice by any judicial or regulatory authority or any stock exchange requesting any information, meeting or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying hearing relating to such entity for the nature of such default and/or Event of Default and the steps taken to remedy the sameOffering;
(cxiii) not amend the Corporation shall Amalgamation Agreement in any material respect without the consent of the Co-Lead Agents, on behalf of the Agents, which consent will not be unreasonably withheld, delayed or denied;
(xiv) use its commercially reasonable efforts to preserve and maintain its corporate existence and satisfy the listing of Escrow Release Conditions prior to the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the ExchangeEscrow Deadline;
(dxv) subject duly execute and deliver the Escrow Release Certificate to the express provisions hereofAgents, dated as of the date that the Escrow Release Conditions are satisfied;
(xvi) promptly notify the Co-Lead Agents in writing or disclose to the public if the Corporation no longer intends to complete the Business Combination prior to the Escrow Deadline;
(xvii) take all required actions to ensure that the capital structure of the Corporation after giving effect to the Business Combination will be consistent in all material respects with the Pro Forma Capital Structure as set out in Schedule "A";
(xviii) prepare and file a listing statement in the form prescribed by the Exchange (the "Listing Statement") prior to the Escrow Deadline, which statement will include historical financial statements for the Corporation and Clarmin as well as business, operational and management information that complies with all requirements of the Exchange and Securities Laws in all material respects;
(xix) immediately prior to the completion of the Business Combination, deliver a certificate signed by such officers as may be acceptable to the Co-Lead Agents, acting reasonably, certifying to the Agents that, after giving effect to the Business Combination, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject share structure of the Resulting Issuer will substantially conform to the express provisions hereof, it shall do or cause to be done Pro Forma Capital Structure set out in Schedule "A" in all things necessary to preserve and keep in full force and effect its corporate existencematerial respects; and
(exx) immediately prior to the completion of the Business Combination, deliver a certificate signed by an appropriate officer of the Corporation, addressed to the Co-Lead Agents, certifying that the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, is not in breach or incurred by the Holder default in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment material respect of any of its covenants, obligations or representations and warranties under the monies owing hereunderSubscription Receipt Agreement, the Amalgamation Agreement or this Agreement, except (in the case of Subscription Receipt Agreement and this Agreement only) for those breaches or defaults that have been waived by the Co-Lead Agents, on behalf of the Agents; and
(xxi) immediately prior to the completion of the Business Combination, deliver a certificate signed by an appropriate officer of the Corporation, addressed to the Co-Lead Agents, certifying the termination of the Shareholder Agreement.
Appears in 1 contract
Samples: Agency Agreement (Cybin Inc.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsUnderwriters that:
(a) prior to the latest Closing Time, the Corporation covenants shall allow the Underwriters the opportunity to conduct required due diligence and agrees with to obtain, acting reasonably, satisfactory results from such due diligence and in particular, the Holder that it Corporation shall repay allow the Underwriters and Underwriters' Counsel to conduct all due diligence which the Underwriters may reasonably require in order to confirm the Public Record is accurate, complete and current in all material respects and to fulfill the Underwriters' obligations as a registrant and, in this regard, without limiting the scope of the Principal due diligence inquiries that the Underwriters may conduct, the Corporation shall make available its senior management, directors and auditors to participate in one or more due diligence sessions (the “Due Diligence Sessions”) to answer in person any interest thereon questions that the Underwriters may have, the first such Due Diligence Session to be held prior to the Holder Closing Date, and the Underwriters shall distribute a list of written questions to be answered in accordance with advance of such Due Diligence Sessions and the terms hereofCorporation shall provide written responses to such questions;
(b) if any of the facts or information underlying or supporting the statement provided in the Corporation's Due Diligence Session Responses have changed prior to the latest Closing Time, the Corporation shall give provide the Underwriters with prompt notice in writing forthwith to the Holder of the occurrence particulars of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the samechanges;
(c) it will comply with all the obligations to be performed by it, and all of its covenants and agreements, under and pursuant to the Offering Agreements including, without limitation, all covenants and agreements of the Corporation shall use commercially reasonable efforts relating to preserve and maintain its corporate existence and the listing or in respect of the Common incurring and renouncing of Resource Expense to Subscribers of FT Shares on and all reporting obligations relating to the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders incurring and renouncing of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the ExchangeResource Expense;
(d) subject during the period commencing on the date of this Agreement and ending at the latest Closing Time, it will promptly provide to the express provisions hereofUnderwriters, for review by the Underwriters and Underwriters' Counsel, prior to filing or issuance of the same, any proposed public disclosure document, including without limitation, any financial statements of the Corporation, report to shareholders, information circular or any press release or material change report and any press release issued by the Corporation concerning the Offered Securities is to include the following or substantially similar legend: “NOT FOR DISTRIBUTION TO UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” “This news release does not constitute an offer to sell or a solicitation of an offer to buy 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 or sold within the United States or to, or for the account or benefit of, U.S. persons (as such term is defined in Regulation S under the U.S. Securities Act) unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available.”;
(e) during the period commencing on the date of this Agreement and ending at the latest Closing Time, promptly notify the Underwriters in writing of any of the representations or warranties made by the Corporation in this Agreement being no longer true and correct;
(f) during the period commencing on the date of this Agreement and ending on the latest Closing Time, the Corporation will promptly inform the Underwriters of the full particulars of any material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets; provided, however, that if the Corporation is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 5(f) has occurred, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject promptly inform the Underwriters of the full particulars of the occurrence giving rise to the express provisions hereofuncertainty and shall consult with the Underwriters as to whether the occurrence is of such a nature;
(g) during the period commencing on the date of this Agreement and ending at the latest Closing Time, the Corporation will promptly inform the Underwriters of the receipt by the Corporation of (i) any communication of a material nature from any Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority relating to the Corporation or the distribution of the Offered Securities, and (ii) the issuance by any Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose;
(h) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters and Underwriters' Counsel with Applicable Securities Laws of the Selling Jurisdictions in which it shall do is a reporting issuer with respect to any material change, change, occurrence or cause event of the nature referred to be done all things necessary in Sections 5(f) and 5(g) above;
(i) the Corporation will use the proceeds from the sale of the FT Shares to preserve and keep in full force and effect its corporate existenceincur Resource Expense on the Material Properties; and
(ej) as soon as reasonably possible, and in any event by the Closing Date, the Corporation agrees shall take all such steps as may reasonably be necessary to pay enable the Offered Securities to be offered for sale and sold on a private placement basis to Subscribers in the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by Selling Jurisdictions through the Holder in connection with the realization of this Debenture Underwriters or any part thereof, other investment dealers or brokers registered in recovering or enforcing payment of any of the monies owing hereunderSelling Jurisdictions by way of the exemptions set forth in Applicable Securities Laws of each of the Selling Jurisdictions.
Appears in 1 contract
Samples: Underwriting Agreement
Covenants of the Corporation. 9.1 The Corporation hereby covenants to and agrees with the Holder as followsAgent and each of the Purchasers that:
(a) the Corporation covenants and agrees with the Holder that it shall repay all of the Principal and any interest thereon prior to the Holder in accordance with Prospectus Qualification, obtain all necessary regulatory consents from the TSE to the Offering on such terms hereofand conditions as are mutually acceptable to the Agent and the Corporation, acting reasonably;
(b) the Corporation it shall give notice in writing forthwith prior to the Holder Closing, use reasonable commercial efforts to arrange for the conditional listing for trading of the occurrence Common Shares issuable upon exercise of any Event of Defaultthe Special Warrants, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Defaultthe Purchase Warrants, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default Compensation Warrants, the Compensation Purchase Warrants, the Fiscal Advisor Warrants and the steps taken Fiscal Advisor Purchase Warrants on the TSE, subject to remedy the sameusual conditions. The Corporation further covenants and agrees to use reasonable commercial efforts to cause such approval to be obtained prior to the Closing Date;
(c) the Corporation it shall use commercially reasonable commercial efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the ExchangeTSE, provided or on such other stock exchange or quotation system acceptable to the Agent and its status as reporting issuer in good standing and its equivalent under the securities legislation of the Qualifying Provinces for the period of 36 months from the date of the Prospectus Qualification;
(d) it shall take all steps necessary to authorize the execution and delivery of the Agreements and to duly and punctually perform all obligations to be performed by it under the Agreements;
(e) it shall at all times allow the Agent and its representatives to conduct all due diligence which the Agent may reasonably require to be conducted in order to fulfill its obligations as "underwriter" under Securities Law other than the state and federal securities laws of the United States and in order to enable the Agent to responsibly execute any certificate required to be executed in connection with a Prospectus, and it shall be a condition precedent to the Agent's execution of any certificate in any Prospectus that this covenant shall not prevent the Corporation from completing any transaction which would result in Agent and its counsel be satisfied, acting reasonably, as to the form and content of such Prospectus;
(f) the Common Shares ceasing shall, upon issuance, be duly issued as fully-paid and non-assessable shares in the capital of the Corporation, and shall have attributes corresponding in all material respects to the description therefore set forth in the Agreements, as the case may be;
(g) it shall appoint and maintain the due appointment of Computershare Trust Company of Canada, or any successor trustee which may be appointed in accordance with the Special Warrant Indenture and Purchase Warrant Indenture, as Special Warrant trustee and Purchase Warrant trustee, respectively;
(h) without the written approval of the Agent, it shall not issue, agree to issue or announce the issuance of any Common Shares or any securities convertible into or exchangeable, directly or indirectly, for or exercisable to acquire Common Shares or other equity securities of the Corporation, other than in connection with the exercise of convertible securities outstanding as of the date hereof, for a period commencing on the date hereof and ending on the date that is the earlier of 120 days following the Closing Date or 30 days following the Prospectus Qualification (the "Restrictive Period") without the prior written agreement of the Agent, such agreement not to be listed on unreasonably withheld, the Exchange so long Closing Date, other than: (a) as part of the Commonwealth Offering; (b) the issuance of options which may be granted to consultants, directors, officers and employees pursuant to existing stock option plans; (c) Common Shares to be issued to satisfy consultant, employee or director stock options or instruments; (d) the issuance of warrants which have been publicly disclosed but not issued pending receipt of regulatory approval; (e) Common Shares to be issued to satisfy existing warrants and those warrants which have been publicly disclosed but not issued pending receipt of regulatory approval; (f) the issuance of any securities contemplated as part of the Offering; (g) the issuance of any securities in connection with an acquisition of any company, business or other entity or the licence of any technology; (h) the issuance of any securities in connection with an amalgamation, merger, arrangement or sale of the Corporation; or (i) the issuance of any securities in connection with a takeover bid defence by the Corporation;
(i) it shall ensure that at the Closing, the Common Shares, Special Warrants, Purchase Warrants, Broker's Option, Compensation Warrants, Compensation Purchase Warrants, Fiscal Advisor Option, Fiscal Advisor Warrants and Fiscal Advisor Purchase Warrants do not constitute "foreign property" within the meaning of the Income Tax Act (Canada) or any amendments thereto publicly announced by the Minister of Finance from time to time;
(j) it shall use the net proceeds of the Offering for purposes that shall be set forth in the Prospectus or any Prospectus Amendment;
(k) it shall deliver a copy of the Preliminary Prospectus and the Prospectus (and any Prospectus Amendment thereto) to all holders of Special Warrants and ensure compliance with the requirements of applicable securities legislation in respect of the offering for sale and sale of the Special Warrants, the distribution of the securities underlying the Special Warrants and the issue and distribution of the Broker's Option and the Fiscal Advisor Warrants and the Common Shares and Compensation Purchase Warrants underlying the Compensation Warrants and the Common Shares and Fiscal Advisor Purchase Warrants underlying the Fiscal Advisor Warrants, respectively, and, without limitation to the foregoing, the completion and filing of the Preliminary Prospectus and the Prospectus;
(l) it shall enter into the Purchase Warrant Indenture and Special Warrant Indenture with the Purchase Warrant Agent and Special Warrant Agent, respectively, in a form satisfactory to the Agent, by the Closing Time;
(m) prior to the Closing Time, it shall have created the Special Warrants, the Broker's Option, the Fiscal Advisor Option; authorized for issuance: the Purchase Warrants issuable upon the exercise of the Special Warrants; the Compensation Warrants issuable upon exercise of the Broker's Option; the Fiscal Advisor Warrants issuable upon the exercise of the Fiscal Advisor Option, the Compensation Purchase Warrants issuable upon exercise of the Compensation Warrants and the Fiscal Advisor Purchase Warrants issuable upon exercise of the Fiscal Advisor Warrants; and reserved and allotted for issuance the Common Shares issuable upon exercise of the Special Warrants, Compensation Warrants, Compensation Purchase Warrants, Fiscal Advisor Warrants, Fiscal Advisor Purchase Warrants and Purchase Warrants, as the holders case may be, and obtained all necessary approvals in connection with the creation and issuance of the Special Warrants, Broker's Option and Fiscal Advisor Option and the Underlying Securities, as applicable, so that the Special Warrants, Broker's Option and Fiscal Advisor Option and the Underlying Securities shall be issued as fully-paid and non-assessable securities of Corporation receive securities of an entity which is listed on a recognized Canadian the Corporation;
(n) it shall complete all filings as may be necessary or U.S. stock exchange desirable or cashas may be requested by the Agent, or acting reasonably, in connection with the holders of securities of Corporation have approved Offering; and
(o) any press release relating to the transaction Offering shall be drafted in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject suggested by U.S. counsel to the express provisions hereof, Company for the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to purpose of ensuring compliance with Rule 135c under the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunder1933 Act.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder Noteholders as follows:: To Pay Principal, Premium and Interest
(a) 5.1 That the Corporation covenants will duly and agrees with punctually pay or cause to be paid to every Noteholder the Holder that it shall repay all principal of the Principal and any interest thereon to the Holder in accordance with the terms hereof;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares accrued on the ExchangeNotes of which he is the holder, provided that this covenant shall not prevent and premium, if any, thereon, on the Corporation from completing any transaction which would result dates, at the places, in the Common Shares ceasing to be listed moneys, and in the manner mentioned herein and in the Notes. To Carry on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cashBusiness
5.2 That, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall will carry on and conduct its business in a proper and efficient manner manner; and at all reasonable times it will furnish or cause to be furnished to the Noteholders or its duly authorized agent or attorney such information relating to the business of the Corporation and the Subsidiaries as the Noteholder may reasonably require; and, subject to the express provisions hereof, it shall will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; andis corporation existence and rights. To Provide Financial Statements
(e) 5.3 That the Corporation agrees to pay will furnish to the Holder forthwith upon demand Noteholders a copy of all costsfinancial statements, charges and expenses (including reasonable legal fees) ofthe report, if any, of the Corporation's Auditors thereon, which are furnished to the holders of Common Shares. Not to Extend Time for Payment of Interest
5.4 That, in order to prevent any accumulation after maturity of unpaid interest, the Corporation will not directly or incurred indirectly be or become a party to or approve any such arrangement by the Holder in connection with the realization of this Debenture purchasing or funding any part thereof, interest on Notes or in recovering or enforcing any other manner. In case the time for the payment of any such interest shall be so extended, whether or not such extension be by or with the consent of the monies owing hereunderCorporation, notwithstanding anything herein or in the Notes contained, such interest shall not be entitled in case of default hereunder to the benefits of this agreement except subject to the prior payment in full of all interest on Notes the payment of which has not been so extended.
Appears in 1 contract
Covenants of the Corporation. (1) The Corporation hereby will comply with Applicable Securities Laws concerning the offer, sale and issuance of the Subscription Shares and will consult with its legal advisers with respect to complying with the Applicable Securities Laws with respect to the issuance and sale of the Subscription Shares pursuant to this Agreement.
(2) Without limiting the generality of paragraph (1) above, the Corporation covenants and agrees with the Holder as followsagrees:
(a) to immediately notify the Corporation covenants and agrees with the Holder that it shall repay all TSX of the Principal agreement to issue the Subscription Shares pursuant to this Agreement and any interest thereon to the Holder in accordance with the terms hereofInvestor Rights Agreement;
(b) to apply for the approval of the listing and posting for trading on the TSX of the Subscription Shares and if requested by the Subscriber, the Corporation shall give notice will provide copies of all correspondence with the TSX in writing forthwith relation to the Holder application and approval for listing of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying Subscription Shares on the nature of such default and/or Event of Default and the steps taken to remedy the sameTSX;
(c) to use its commercially reasonable efforts to obtain all the Required Approvals on or before the Closing Date and the Corporation will keep the Subscriber informed as to the progress of obtaining such Required Approvals and any issue that may be arising and the Corporation will share all relevant correspondence with the Subscriber if so requested by the Subscriber; and
(d) The Corporation shall make all reasonable efforts to promptly make available to the Subscriber, as reasonably requested, information, records, and documents relating to such filings, applications, submissions and/or communications in respect of the Required China Approvals as the Corporation may deem appropriate.
(3) The Corporation will, from and including the date of this Agreement through to and including the Time of Closing:
(a) do all such acts and things necessary to ensure that all of the representations and warranties of the Corporation contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement remain true and correct in all material respects (except those representations and warranties which are qualified by materiality which shall be true and correct in all respects) and not do any such act or thing that would render any representation or warranty of the Corporation contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement materially untrue or incorrect;
(b) fulfill in a timely manner all its covenants and agreements contained in this Agreement;
(c) use commercially reasonable efforts to preserve ensure that the conditions contained under Article 2 of this Agreement over which the Corporation has reasonable control have been satisfied, performed or complied with by the Time of Closing; and
(d) not take any action that could reasonably be expected to interfere with or be inconsistent with the completion of the transactions contemplated by any Transaction Agreement.
(4) If the Corporation or its representatives or agents, receives any request for information, documents or other materials, or a notice, from any Governmental Entity indicating that any investigation, review, inquiry or other formal or informal proceeding, which could lead to an order temporarily or permanently prohibiting the closing of the transactions contemplated under the Transaction Agreements, is taking place or may take place, the Corporation shall:
(a) promptly notify the Subscriber of the applicable notice or request for information, documents or other materials;
(b) in consultation and maintain cooperation with the Subscriber, respond as promptly as possible to any request for information made by any such Governmental Entity, and thereafter, after providing the Subscriber with a reasonable opportunity to review and comment on any drafts of any written communications with a Governmental Entity, make any other submissions or filings as may be advisable in order to enable the consummation of the transaction contemplated by this Agreement or the other Transaction Agreements (promptly notifying the Subscriber when any such submission or filing is made); and
(c) promptly respond to any request for a meeting by any Governmental Entity, arrange for such meeting to take place as soon as possible and, if the Corporation determines to be appropriate in the circumstances, permit the Subscriber to attend such meeting.
(5) From and including the date of this Agreement through to and including the Time of Closing the Corporation will use commercially reasonable efforts to negotiate with the Subscriber or its corporate existence and designated affiliates the listing Commercial Agreements in order for executed copies thereof to be delivered prior to or at the Time of Closing.
(6) The Corporation shall not take any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the ExchangeTSX, and the Corporation shall comply with the rules and regulations thereof for a period of three (3) years from the Closing Date, provided that this covenant shall not prevent apply to any merger, amalgamation, arrangement, take-over bid, going private transaction or other similar transaction involving the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders purchase or sale of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies all of the Exchange;outstanding Common Shares.
(d7) subject The Corporation shall use it reasonable commercial efforts to maintain its status as a “reporting issuer” in each of the express provisions hereof, provinces and territories of Canada for a period of three (3) years from the Closing Date and the Corporation shall carry on and conduct its business in comply with all Applicable Securities Laws, provided that the covenant to remain a proper and efficient manner and“reporting issuer” shall not apply to any merger, subject to amalgamation, arrangement, take-over bid, going private transaction or other similar transaction involving the express provisions hereof, it shall do purchase or cause to be done sale of all things necessary to preserve and keep in full force and effect its corporate existence; andof the outstanding Common Shares.
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunder.8) [commercially sensitive covenant redacted]
Appears in 1 contract
Samples: Subscription Agreement (Ballard Power Systems Inc.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsUnderwriters that:
(a) prior to the Closing Time and prior to the filing of the Qualification Prospectus, the Corporation covenants shall allow the Underwriters the opportunity to conduct required due diligence and agrees with to obtain, acting reasonably, satisfactory results from such due diligence and in particular, the Holder that it Corporation shall repay allow the Underwriters and Underwriters’ Counsel to conduct all due diligence which the Underwriters may reasonably require in order to confirm the Documents and the Public Record are accurate, complete and current when taken as a whole in all material respects and to fulfill the Underwriters’ obligations as a registrant and, in this regard, without limiting the scope of the Principal due diligence inquiries that the Underwriters may conduct, the Corporation shall make available its senior management, directors, “qualified persons” and auditors to participate in one or more due diligence sessions (the “Due Diligence Sessions”) to answer in person any interest thereon questions that the Underwriters may have, the first such Due Diligence Session to be held prior to the Holder Closing Date, and the Underwriters shall distribute a list of written questions to be answered in accordance with advance of such Due Diligence Sessions and the terms hereofCorporation shall provide written responses to such questions;
(b) if any of the facts or information underlying or supporting the statement provided in the Corporation’s Due Diligence Session Responses have changed, the Corporation shall give provide the Underwriters with prompt notice in writing forthwith to the Holder of the occurrence particulars of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the samechanges;
(c) it will comply with all the obligations to be performed by it, and all of its covenants and agreements, under and pursuant to the Material Agreements;
(d) during the period commencing on the date of this Agreement and ending at the Closing Time, it will promptly provide to the Underwriters, for review by the Underwriters and Underwriters’ Counsel, prior to filing or issuance of the same, any proposed public disclosure document, including without limitation, any financial statements of the Corporation, report to shareholders, information circular or any press release or material change report and any press release issued by the Corporation concerning the Subscription Receipts, the Special Warrants or the Underlying Shares; and the press release issued outside of the United States shall contain an appropriate legend restricting the distribution of the press release that shall be prominently displayed in the top of the first page of the press release as follows: “NOT FOR DISTRIBUTION TO UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES” as well as a legend that complies with the requirements of Rule 135e under the U.S. Securities Act. The press release issued in the United States shall comply with the requirements of Rule 135c under the U.S. Securities Act;
(e) it will make all necessary filings, obtain all necessary consents and approvals (if any) and pay all filing fees required to be paid in connection with the transactions contemplated by this Agreement. The Corporation will cooperate with the Underwriters in connection with the qualification of the Underlying Shares under the Applicable Securities Laws;
(f) during the period commencing on the date of this Agreement and ending at the Qualification Date, it will promptly notify the Underwriters in writing of any of the representations or warranties made by the Corporation in this Agreement being no longer true and correct;
(g) during the period commencing on the date of this Agreement and ending at the Qualification Date, the Corporation will promptly inform the Underwriters of the full particulars of any material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets; provided, however, that if the Corporation is uncertain as to whether a material change, occurrence or event of the nature referred to in this Section 10(g) has occurred, the Corporation shall promptly inform the Underwriters of the full particulars of the occurrence giving rise to the uncertainty and shall consult with the Underwriters as to whether the occurrence is of such a nature;
(h) during the period commencing on the date of this Agreement and ending at the Qualification Date, the Corporation will promptly inform the Underwriters of the receipt by the Corporation of (i) any communication of a material nature from any Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority relating to the Corporation or the distribution of the Subscription Receipts, and (ii) the issuance by any Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose;
(i) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters and Underwriters’ Counsel with Applicable Securities Laws of the Selling Jurisdictions in which it is a reporting issuer with respect to any material change, change, occurrence or event of the nature referred to in Sections 10(f) and 10(g) above;
(j) it shall use its commercially reasonable efforts to preserve and maintain its corporate existence and status as a “reporting issuer” or the equivalent not in default in each of the Qualifying Jurisdictions for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares;
(k) it shall use its commercially reasonable efforts to maintain the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a TSX and NYSE MKT or other recognized Canadian or U.S. stock exchange for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or cash, other similar transaction involving the purchase or the holders sale of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies all of the Exchangeoutstanding Common Shares;
(dl) subject it shall ensure that: (i) at all times prior to the express provisions hereofQualification Date, a sufficient number of Underlying Shares are duly and validly allotted and reserved for issuance upon the due exercise of the Special Warrants; and (ii) upon the due exercise of the Special Warrants, the Underlying Shares will be duly issued as fully paid and non-assessable shares in the capital of the Corporation;
(m) the Corporation will use the net proceeds from the Offering for (i) the Hollister Acquisition and replacement of reclamation bonds currently in place with United States and Nevada regulators, (ii) exploration growth at the Hollister mine and Xxxxxxxxx mine, and (iii) development at the Hollister mine;
(n) as soon as reasonably possible, and in any event by the Closing Date, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject take all such steps as may reasonably be necessary to enable the express provisions hereof, it shall do or cause Subscription Receipts to be done all things necessary offered for sale and sold on a private placement basis to preserve and keep Subscribers in full force and effect its corporate existencethe Selling Jurisdictions through the Underwriters or any other investment dealers or brokers registered in any of the Selling Jurisdictions by way of the exemptions set forth in Applicable Securities Laws of each of the Selling Jurisdictions; and
(eo) the Corporation agrees to pay shall file a resale registration statement related to the Holder forthwith upon demand Underlying Shares underlying Subscription Receipts purchased in the United States on Form F-3 on October 7, 2016 (which is the date that the Company becomes eligible to use such Form), and to use commercially reasonable efforts to have taken effective and to maintain the effectiveness of such registration statement (on Form F-3 or a similar form) until such time as all costssuch securities may be resold, charges and expenses (including reasonable legal fees) ofwithout limitation, or incurred by under Rule 144 promulgated under the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderU.S. Securities Act.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants to and agrees with the Holder Warrant Agent that so long as followsany Warrants remain outstanding and may be exercised:
(a) it will reserve and keep available a sufficient number of Common Shares for the Corporation covenants and agrees with purpose of enabling it to satisfy its obligations to issue Common Shares upon the Holder that it shall repay all exercise of the Principal Warrants;
(b) it will cause the Common Shares and any interest thereon the certificates representing the Common Shares subscribed and paid for pursuant to the Holder exercise of the Warrants to be duly issued and delivered in accordance with the Warrant Certificates and the terms hereof;
(bc) the Corporation all Common Shares which shall give notice in writing forthwith to the Holder be issued upon exercise of the occurrence of any Event of Defaultright to purchase provided for herein and in the Warrant Certificates, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing payment of the Common Shares on the Exchange, Exercise Price herein provided that this covenant shall not prevent the Corporation from completing any transaction which would result for and in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance Warrant Certificates and upon compliance with the requirements of other applicable corporate terms and securities laws conditions hereof and the rules thereof, shall be fully paid and policies of the Exchangenon-assessable;
(d) subject it will give to the express provisions Warrantholders, in the manner provided in Section 3.6 hereof, and to the Warrant Agent in the manner provided in Section 13.1 hereof, notice of a record date, or effective date, as the case may be, for any event referred to in Article 5 hereof which may give rise to an adjustment in the Exercise Price or in the number of Common Shares purchasable upon the exercise of Warrants and, in each case, such notice shall specify the particulars of such event and the record date, or the effective date, for such event, provided that the Corporation shall only be required to specify in such notice such particulars of such event as shall have been fixed and determined on the date on which such notice is given, and such notice shall be given concurrently with notice of such event to holders of Common Shares;
(e) it will maintain its corporate existence, provided that this subsection 7.1(e) shall not restrict the Corporation from completing a Capital Reorganization in accordance with subsection 5.2(d);
(f) it will not take any other action which might deprive the Warrantholders of the opportunity of exercising their right of purchase pursuant to the Warrants held by such Persons during the period of notice required by subsection 5.5(a);
(g) it will give written notice of the issue of Common Shares pursuant to the exercise of Warrants, if required and in such detail as may be required, to each securities regulatory authority in each relevant jurisdiction pursuant to applicable law;
(h) it will promptly notify the Warrant Agent and the Warrantholders in writing of any material default under the terms of this Warrant Indenture which remains unrectified for more than fifteen (15) days following its occurrence;
(i) in the event that it shall begin, or cease, to file as a foreign issuer with the U.S. Securities and Exchange Commission, the Corporation shall carry on and conduct its business promptly deliver to the Warrant Agent an officers’ certificate (in a proper form provided by the Warrant Agent) certifying such reporting issuer status and efficient manner and, subject to other information as the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceWarrant Agent may require at such time; and
(ej) the Corporation agrees to pay to the Holder forthwith upon demand it will perform all costs, charges of its covenants and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any carry out all of the monies owing hereunderacts or things to be done by it as provided in this Indenture.
Appears in 1 contract
Samples: Warrant Indenture (Energy Fuels Inc)
Covenants of the Corporation. The Corporation hereby covenants to the Agent and agrees with the Holder as followsPurchasers that it will:
(a) fulfil all legal requirements to permit the Corporation covenants creation, issue, offering and agrees sale of the Offered Securities and the creation and issue of the Agent's Warrants, including, without limitation, compliance with the Holder that it shall repay all applicable securities laws of each of the Principal Qualifying Jurisdictions to enable the Offered Securities to be offered for sale and any interest thereon sold to the Holder in accordance Purchasers without the necessity of filing a prospectus or an offering memorandum under the applicable securities laws of the Qualifying Jurisdictions through investment dealers or brokers registered under the applicable securities laws of the Qualifying Jurisdictions who have complied with the terms hereofrelevant provisions of such laws;
(b) the Corporation shall give notice in writing forthwith ensure that at all times prior to the Holder expiry of the occurrence Warrants, sufficient Common Shares are allotted and reserved for issuance upon the due and proper exercise of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameWarrants;
(c) ensure that at all times prior to the Corporation shall expiry of the Agent's Warrants, sufficient Agent's Shares are allotted and reserved for issuance upon the due and proper exercise of the Agent's Warrants;
(d) use commercially its reasonable best efforts to preserve obtain the necessary regulatory consents from the Exchange, and to the extent necessary, from each of the Securities Commissions, for the Offering on such terms as are mutually acceptable to the Agent and the Corporation, acting reasonably;
(e) pursue diligently the listing and posting for trading of the Common Shares on The Toronto Stock Exchange and until such listing, use its reasonable best efforts to arrange for the listing and posting for trading of the Common Shares comprising part of the Units, the Flow-Through Shares, the Common Shares issuable upon exercise of the Warrants and the Agent's Shares on the Exchange as soon as possible and to maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(df) subject except pursuant to any transaction that is approved by the shareholders of the Corporation, use its reasonable best efforts to maintain its status as a reporting issuer not in default under the applicable securities legislation of Ontario, Alberta and British Columbia for a period of two years from the Closing Date;
(g) during the period from the date hereof to the express provisions hereofday that is five months after the Closing Date, the Corporation shall not amend the terms and conditions of the Common Shares or issue or agree to issue, contemplate the issuance of or announce the intention to issue or do any act in furtherance of a trade of, whether directly or indirectly, any additional Common Shares, or other securities of the Corporation or any options, warrants or contractual rights which may result in the issue of any securities, other than (i) pursuant to the exercise of . securities or fulfilment of rights (as disclosed in Section 3(z)) outstanding on the date hereof, (ii) pursuant to director or employee stock option plans established on the date hereof, and (iii) pursuant to a bona fide acquisition or merger by the Corporation or one of the Subsidiaries, without the prior written consent of the Agent, such consent not to be unreasonably withheld;
(h) the Corporation shall use its best efforts to cause each of its executive officers and directors to enter into an agreement with the Agent, on terms and conditions satisfactory to the Agent, whereby each such executive officer and director will covenant and agree it they will not, during a period of eight months following the Closing Date, directly or indirectly, offer, sell, contract to sell, lend, swap, or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with, or publicly announce any intention to offer, sell, contract to sell, grant or sell any option to purchase, hypothecate, pledge, transfer, assign, purchase any option or contract to sell, lend, swap or enter into any agreement to transfer the economic consequences of, or otherwise dispose of or deal with, whether through the facilities of a stock exchange, by private placement or otherwise, Common Shares held by him or her, directly or indirectly, without first obtaining the written consent of the Agent, which consent will not be unreasonably withheld or delayed, or upon the occurrence of a take-over bid or similar transaction involving a change of control of the Corporation;
(i) be a "qualifying issuer" as such term is defined in MI 45-102 at the Time of Closing, and fulfil to the satisfaction of the Agent all requirements (including, without limitation, compliance with applicable securities laws) required to be fulfilled by the Corporation in order to distribute the Offered Securities with a four month resale hold period to Purchasers in each of the Qualifying Provinces under the applicable securities laws of each of the Qualifying Provinces;
(j) on or before December 31, 2004, carry out exploration activities on resource properties in Canada beneficially owned by the Corporation, or on any resource properties in which the Corporation has an interest or the right to acquire an interest so as to incur or be deemed to incur Canadian Exploration Expenses in an amount not less than the aggregate gross proceeds of the sale of Flow-Through Shares pursuant to the Offering (the "Investment") and conduct renounce to the Purchasers of Flow-Through Shares effective on or prior to December 31, 2003 an amount of Canadian Exploration Expenses equal to the amount of the Investment and file all required tax forms within the time required under the ITA and deliver all required tax forms and other information to the Purchasers of the Flow-Through Shares not later than March 31, 2004;
(k) until the later of the time when the Flow-Through Shares are issued to the Purchasers thereof and the actual date that the last of the Canadian Exploration Expenses are renounced to such Purchasers, continue to maintain its status as a "principal business corporation" within the meaning of the ITA;
(l) ensure the Flow-Through Shares are "flow-through shares" as defined in subsection 66(15) of the ITA and that the Flow-Through Shares will not constitute "prescribed shares" for the purpose of regulation 6202.1 of the regulations to the ITA;
(m) not take any step or fail to take any step if, under the ITA, such action or omission could result in a proper and efficient manner and, subject reduction of amounts required to be renounced to the express provisions hereofPurchasers of Flow-Through Shares pursuant to the terms of the Subscription Agreements entered into by each Purchaser of Flow-Through Shares and the Corporation;
(n) within seven business days of the Closing Date, it file all necessary documentation with the OPMRO to register its option to acquire the Xxxxx Xxxx Property under the English Option Agreement in the database maintained by the OPMRO and to use its best efforts to deliver evidence of such registration to the Agent as soon as practicable and in any event within 45 days of the Closing Date;
(o) within seven business days of the Closing Date, register its option to acquire the Conjurer Property under the Xxxxxx Option Agreement in the database maintained by the Mining Recorder's Office of the Northwest Territories ;
(p) within seven business days of the Closing Date, file all necessary documentation with the OPMRO to register its option to acquire the Spot Lake Property and the Woman Lake Property under the Spot Lake Agreement and the Woman Lake Agreement, respectively, in the database maintained by the OPMRO and to use its best efforts to deliver evidence of such registration to the Agent as soon as practicable and in any event within 45 days of the Closing Date;
(q) immediately after the Time of Closing, file such documents as may be required under the applicable securities laws of each of the Qualifying Jurisdictions relating to the private placement of the Offered Securities and the Agent's Warrants which, without limiting the generality of the foregoing, shall do or cause include a Form 45-501F1 as prescribed by Rule 45-501 made under the Ontario Act and pay all filing fees to be done paid in connection therewith, and if necessary, a Form 45-102F2 as prescribed by M145-102;
(r) allow the Agent to conduct all things necessary due diligence which it may reasonably require to preserve and keep conduct in full force and effect order to fulfil its corporate existenceobligations; and
(es) within seven business days of the Closing Date, file all necessary documentation with the OPMRO to register in the Corporation's name mineral claim number KRL-1185143 with the OPMRO pursuant to the terms of the letter agreement dated November 9, 2001 between the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderEnglish.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) The Corporation agrees that all Capital Securities issued in exchange for Securities will upon issuance be duly and validly issued and, if applicable, fully paid and nonassessable. If any Capital Securities required to be exchanged for Securities hereunder require registration with or approval of any governmental authority under any Federal or State law or any national securities exchange, before such Capital Securities may be issued, the Corporation covenants shall use its best efforts to cause such Capital Securities to be duly registered or approved, as the case may be. The Corporation will pay any and agrees with the Holder all transfer, stamp or similar taxes that it shall repay all may be payable in respect of the Principal and any interest thereon to the Holder issue or delivery of Capital Securities in accordance with the terms hereof;exchange for Securities pursuant hereto.
(b) The Corporation unconditionally undertakes to sell or cause to be sold Capital Securities in each Secondary Offering (and to bear all expenses of each Secondary Offering, including underwriting discounts and commissions) at the times and in the manner required by this Indenture and the Securities of the series exchanged for Capital Securities unless all holders of the Securities of such series to be exchanged have duly elected to receive Capital Securities on the related Exchange Date, or the Designated Proceeds the Corporation shall give notice in writing forthwith has elected to apply to the Holder payment of Securities of such series are sufficient to satisfy the claims of all Cash Election Holders with respect to the principal amount of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of Securities held by such default and/or Event of Default and the steps taken to remedy the same;holders.
(c) The Corporation agrees, to the extent such agreement is enforceable under applicable law, to indemnify and hold harmless each holder of Securities for the account of whom Capital Securities are being offered and sold in connection with any Secondary Offering and any underwriter, agent or other similar person from and against any and all losses, claims, damages and liabilities resulting from or based upon any untrue statement or alleged untrue statement of any material fact contained in any notice of exchange, any offering memorandum or selling document or registration statement relating to the Secondary Offering, any preliminary prospectus or prospectus contained therein, or any amendment thereof or supplement thereto, or resulting from or based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or resulting from the Corporation's failure to comply with Section 17.09(a); provided, however, that the Corporation shall use commercially reasonable efforts will not be liable in any such case to preserve the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement, alleged untrue statement, omission or alleged omission made therein (i) in reliance upon and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent in conformity with written information furnished to the Corporation from completing any transaction which would result by or on behalf of such holder specifically for use in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance connection with the requirements preparation thereof or (ii) because of applicable corporate such holder's failure to advise the Corporation in writing that any assumption described in Section 17.04(a)(10) is incorrect. In connection with any Secondary Offering, the Corporation agrees to obtain usual and securities laws appropriate indemnification of any holder for the account of whom Capital Securities are being offered and the rules and policies of the Exchange;sold in any Secondary Offering from any underwriter, agent or other similar person.
(d) subject to The Corporation will effect each Secondary Offering such that the express provisions hereof, closing of such Secondary Offering will occur on or before the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderrelevant Exchange Date.
Appears in 1 contract
Samples: Indenture (J P Morgan Chase & Co)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder Subscriber that so long as followsany Special Warrants remain outstanding:
(a) it will reserve and keep available a sufficient number of Common Shares for the Corporation covenants and agrees with purpose of enabling it to satisfy its obligations to issue Common Shares upon the Holder that it shall repay all exercise of the Principal and any interest thereon Special Warrants;
(b) it will cause the Common Shares issuable upon exercise of the Special Warrants to the Holder be duly issued in accordance with the Warrant Certificates and the terms hereof;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the all Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to are issued upon exercise of Special Warrants will be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate fully paid and securities laws and the rules and policies of the Exchangenon-assessable;
(d) subject it will not take any other action that might deprive the Subscriber of the opportunity of exercising its rights pursuant to the express provisions hereofSpecial Warrants held by it during the period of notice required by Subsection 4.05(1);
(e) it will perform all its covenants and carry out all of the acts or things to be done by it as provided in this Subscription Agreement;
(f) it will use its commercially reasonable best efforts to obtain the Final Receipt as soon as possible but in any event within 120 days of the date of this Subscription Agreement;
(g) it will send a written notice to the Subscriber to (i) notify it of the issuance of the Final Receipt; and (ii) provide a copy of the Canadian Final Prospectus and the Registration Statement, as soon as practicable but, in any event, not later than three business days after the Corporation shall date on which both the Final Receipt is obtained and the Registration Statement is declared effective;
(h) it will send a written notice to the Subscriber to notify it of the record date for the determination of holders of Common Shares for the purposes of any issuance, distribution or rights offering to holders of such securities or any other transaction referred to in Section 4.01, not later than ten business days prior to such record date;
(i) it will at all times maintain its existence while any Special Warrants are outstanding, carry on and conduct its business in a proper corporate and efficient manner andbusiness-like manner, subject to the express provisions hereof, it shall do keep or cause to be done kept proper books of accounts in accordance with generally accepted accounting practice;
(j) it will make all things necessary requisite filings, including filings with appropriate regulatory authorities, required to preserve be made by the Corporation in connection with the issue and keep sale of the Special Warrants and the exercise of the Special Warrants and the issue of Common Shares upon such exercise;
(k) it will use its commercially reasonable efforts to maintain its status as a “reporting issuer” or equivalent not in full force and effect its corporate existencedefault in the Qualifying Province; and
(el) it will maintain the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any listing of the monies owing hereunderCommon Shares on TSX and the Nasdaq.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder Agent as follows:
(a) the Corporation covenants and agrees with the Holder that it shall repay all will use commercially reasonable efforts to maintain its status as a reporting issuer not in default in each of the Principal and any interest thereon Public Selling Jurisdictions in which it is a reporting issuer or the equivalent for a period of at least 60 months following the final Closing Date, provided that the foregoing requirement is subject to the Holder in accordance obligations of the directors of the Corporation to comply with their fiduciary duties to the terms hereofCorporation;
(b) the Corporation shall give notice forthwith advise the Agent of, and provide the Agent with copies of, any written communications relating to:
(i) the issuance by any securities regulatory authority, including the TSXV or NASDAQ, of any order suspending or preventing the use of the Prospectus or any cease trading or stop order or any halt in writing forthwith trading relating to the Holder of Common Shares or the occurrence institution or threat of any Event proceedings for that purpose; and
(ii) the receipt of Defaultany material communication from any securities regulatory authority, including the TSXV and NASDAQ, or other event which with lapse of time and/or giving of notice authority relating to the Prospectus or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameOffering;
(c) the Corporation shall use its commercially reasonable best efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent TSXV and the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a NASDAQ or such other recognized Canadian or U.S. stock exchange or cashquotation system as the Agent may approve, acting reasonably, for as long as any Warrants or Broker Warrants remain outstanding, other than in a business combination or similar transaction where all the outstanding securities of the Corporation have been exchanged for cash or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchangeanother issuer which is a reporting issuer under any Applicable Securities Laws;
(d) subject to the express provisions hereof, the Corporation shall carry use its commercially reasonable efforts to ensure that the Shares will be conditionally approved for listing on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; andTSXV upon their issue;
(e) the Corporation agrees to pay shall use the net proceeds of the Offering contemplated herein in the manner and subject to the Holder forthwith upon demand qualifications described in the Prospectus under the heading “Use of Proceeds”;
(f) the Corporation will make all costs, charges filings necessary with each applicable Securities Commission and expenses (including reasonable legal fees) of, or incurred by the Holder pay all applicable fees in connection with the realization Offering in full compliance with the manner and within the time limits prescribed by Applicable Securities Laws;
(g) the Corporation shall duly, faithfully and punctually perform all the obligations to be performed by it and comply with its covenants and agreements hereunder and under the Transaction Documents;
(h) with a view to making available to the investors the benefits of this Debenture Rule 144 under the 1933 Act (“Rule 144”) or any part other similar rule or regulation of the SEC that may at any time permit the investors to sell securities of the Corporation to the public without registration and otherwise to facilitate liquidity for trading in the United States, the Corporation agrees to:
(i) make public information available, as those terms are understood and defined in Rule 144;
(ii) file with the SEC in a timely manner all reports and other documents required of the Corporation under the 1934 Act; and
(iii) so long as any of the investors own Offered Shares, Warrants or Warrant Shares that may not be sold pursuant to Rule 144 without compliance with the current public information requirement thereof, (i) furnish to the investors a written statement by the Corporation that it has complied with the reporting requirements of the 1934 Act as required for applicable provisions of Rule 144, (ii) furnish or otherwise make available (on XXXXX or otherwise) a copy of the most recent annual or quarterly report of the Corporation and such other reports and documents so filed by the Corporation and (iii) furnish or otherwise make available such other information as may be reasonably requested to permit the investors to sell such securities pursuant to Rule 144 without registration under the 1933 Act;
(i) the Corporation shall use its reasonable best efforts to cause the Shares to be listed for trading on the TSXV as soon as possible following the Closing. Subsequent to a listing of such securities on the TSXV, the Corporation shall use its reasonable best efforts to maintain such listing for a period of 60 months following the final Closing Date. The Corporation shall take all such actions as shall be necessary to effectuate such listing and the maintenance thereof. The Corporation shall pay all fees and expenses in recovering connection with satisfying its obligations under this subsection 7(i);
(j) from and after the filing of the press release announcing the Closing, no investor shall be in possession of any material, nonpublic information received from the Corporation, the Subsidiary or enforcing payment any of their respective officers, directors, employees or agents, that is not disclosed in the press release announcing the Closing. The Corporation shall not, and shall cause the Subsidiary and its and each of their respective officers, directors, employees and agents, not to, provide any investor with any material, nonpublic information regarding the Corporation or the Subsidiary from and after the filing of the press release announcing the Closing without the express written consent of such investor. In the event of a breach of any of the monies owing hereunderforegoing covenants by the Corporation, the Subsidiary or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of such investor), in addition to any other remedy provided herein or available at law or in equity, such investor shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material, nonpublic information, as applicable, without the prior approval by the Corporation, the Subsidiary or any of its or their respective officers, directors, employees or agents. No investor shall have any liability to the Corporation, the Subsidiary, or any of its or their respective officers, directors, employees, stockholders or agents, for any such disclosure; and
(k) for each taxable year of the Corporation that the Corporation determines that it, and any subsidiary in which the Corporations owns, directly or indirectly, more than 50% of such subsidiary’s total aggregate voting power, is likely a passive foreign investment company under the United States Internal Revenue Code of 1986 in any taxable year, the Corporation will make available to a holder that owns any Offered Shares, Warrants or Warrant Shares, upon written request and in accordance with applicable procedures, a “PFIC Annual Information Statement” with respect to the Corporation and any such subsidiary for such taxable year.
Appears in 1 contract
Samples: Agency Agreement (ESSA Pharma Inc.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsagrees:
(a) to comply with all covenants of the Corporation covenants set forth in the Transaction Documents in all material respects and agrees with to duly, punctually and faithfully perform all the Holder that obligations to be performed by it shall repay all of under the Principal and any interest thereon to the Holder in accordance with the terms hereofTransaction Documents;
(b) as soon as reasonably possible, and in any event by the Corporation shall give notice in writing forthwith Closing Date, to take any and all commercially reasonable steps to enable the Subscribed Securities to be offered for sale and sold on a private placement basis to the Holder Investor by way of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same“accredited investor” exemption under Applicable Securities Laws applicable in Quebec as contemplated hereby;
(c) as soon as reasonably practicable, and in any event by the Corporation shall Excess Common Share Final Approval Date, to take any and all commercially reasonable steps in a timely fashion to reasonably cooperate with the Investor and to provide such information about the Corporation, the Acquisition and its financing as is necessary to assist the Investor to obtain the Required Excess Common Share Approvals;
(d) to use the proceeds from the issuance and sale of the Subscribed Securities to fund a portion of the aggregate Acquisition Price;
(e) prior to the Closing Time, to provide prompt notice to the Investor of the lapsing or (with the consent of the Takeover Panel) withdrawal of the Acquisition;
(f) to use its commercially reasonable efforts to preserve obtain, prior to the Closing Time, all necessary approvals of the Exchange for the issuance of the Subscribed Securities and maintain its corporate existence for the issuance and the listing of the Common Shares on Placement Underlying Shares, subject only to the ExchangeStandard Listing Conditions, provided and that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on it will comply with all requirements of the Exchange so long as the holders in connection therewith, including filing of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction all necessary documentation in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(dg) to use its commercially reasonable efforts to expeditiously pursue the satisfaction of all conditions to the completion of the Acquisition (including, for greater certainty, the Escrow Release Conditions) in its control;
(h) to cause the issuance of the Placement Underlying Shares to holders of the Subscribed Securities if and when such issuance is to occur in accordance with and subject to the express provisions hereofterms of the Subscription Receipt Agreement;
(i) not to, without the prior approval of holders of at least 50% of the Cornerstone Private Placement Subscription Receipts, (i) materially amend any of the terms and conditions of the Acquisition as set out in the Rule 2.7 Announcement or (ii) waive any material provision thereof, in whole or in part, where such amendment or waiver would be materially adverse to the interest of the holders of the Cornerstone Private Placement Subscription Receipts, provided that any amendment or waiver (including the treatment of a condition as having been satisfied) that is (A) required pursuant to the Takeover Code or by a court of competent jurisdiction or the Takeover Panel (including any refusal by the Takeover Panel to allow the invocation of a condition) or (B) in the event the Acquisition is implemented by way of a Takeover Offer, reducing the acceptance condition to not less than 75% of the then issued ordinary share capital of the Target shall not be regarded as being materiality adverse to the interest of the holders of the Cornerstone Private Placement Subscription Receipts;
(j) to notify the Investor of the Excess Common Share Final Approval Date as promptly as practicable prior to such date, it being agreed that the Corporation shall carry on and conduct its business in a proper and efficient manner andshall, subject to the express provisions hereofrules of the Takeover Code in relation to disclosure of information, it shall do or cause provide the Investor with reasonable updates regarding the anticipated date of the Excess Shares Final Approval Date;
(k) not to, without the prior written consent of the Investor, amend any of the terms and conditions of the Subscription Receipt Agreement, including with regards to be done all things necessary the Escrow Release Condition;
(l) to preserve comply with, and keep to procure that its Subsidiaries comply with, the rules and principles of the Takeover Code and/or any rulings of the Takeover Panel in full force and effect its corporate existencerespect of the Acquisition; and
(em) to deliver to the Investor, promptly following receipt thereof, copies of each notice or statement delivered to the Corporation agrees to pay to under the Holder forthwith upon demand Subscription Receipt Agreement, including, without limitation, all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder statements of account in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any respect of the monies owing hereunderEscrow Account.
Appears in 1 contract
Samples: Subscription Agreement
Covenants of the Corporation. The Corporation hereby covenants to each of the Agents and agrees to the Purchasers and their permitted assigns, and acknowledges that each of them is relying on such covenants in connection with the Holder as followspurchase of the Offered Shares, that the Corporation (including its successors and assigns if applicable) will:
(a) allow the Agents and their representatives to conduct all due diligence regarding the Corporation covenants and agrees with its Subsidiaries which the Holder that it shall repay all of the Principal and any interest thereon Agents may reasonably require to be conducted prior to the Holder Closing Date, and in accordance with particular, the terms hereofCorporation will make available its senior management and directors to participate in one or more due diligence telephone calls (the “Due Diligence Sessions”) prior to the Closing Date to answer in person any questions that the Agents may have and the Agents will distribute a list of written questions to be answered and the Corporation will have provided oral or written responses to such questions at such Due Diligence Session;
(b) the Corporation shall give notice in writing forthwith use its commercially reasonable efforts to fulfil or cause to be fulfilled, at or prior to the Holder Closing Time, each of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would conditions required to be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the samefulfilled as set out in Section 5;
(c) until the expiry of the Compensation Warrants in accordance with their terms, use its commercially reasonable efforts to remain, and to cause each of the Subsidiaries to remain, a corporation validly existing under the laws of its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the Corporation determines such licensing, registration or qualification is necessary to carry on its business and the business of its Subsidiaries in the ordinary course and in compliance in all material respects with all applicable laws, provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, binding share exchange, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction;
(d) until the expiry of the Compensation Warrants in accordance with their terms, maintain its status as a “reporting issuer” under the Securities Laws of at least one jurisdiction of Canada not in default of any requirement of such Securities Laws, provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, binding share exchange, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction;
(e) until the expiry of the Compensation Warrants in accordance with their terms, use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the ExchangeCSE or such other recognized stock exchange or quotation system in Canada, provided that this covenant clause shall not prevent be construed as limiting or restricting the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders a consolidation, amalgamation, arrangement, binding share exchange, sale of securities of Corporation receive securities of an entity which is listed on a recognized Canadian all or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies substantially all of the ExchangeCorporation's assets, takeover bid, merger or other similar transaction;
(df) subject duly execute and deliver the Transaction Documents, to which it is a party, at the express provisions hereofClosing Time, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation shall carry on Corporation;
(g) fulfill all legal requirements to permit the creation and conduct its business in a proper issuance of the Offered Shares and efficient manner andthe Compensation Warrants at the Closing Time and the issuance of the Compensation Shares issuable upon exercise of the Compensation Warrants, subject to all as contemplated by the express provisions hereofTransaction Documents, it shall do and file or cause to be done filed all things necessary forms, notices, documents, applications, undertakings or certificates required to preserve be filed by the Corporation in connection with the Offering so that the distribution of such securities may lawfully occur without the necessity of filing a prospectus in Canada or a registration statement in the United States or similar document in any other jurisdiction;
(h) ensure that, at the Closing Time, the Offered Shares are duly authorized and keep validly created and, upon receipt of full payment therefore, are issued as fully paid and non-assessable shares in full force the capital of the Corporation and effect its corporate existenceshall have attributes corresponding in all material respects to the description thereof set forth in this Agreement and the Subscription Agreements;
(i) ensure that, at the Closing Time, the Compensation Warrants shall be validly created and issued and shall have attributes corresponding in all material respects to the description thereof set forth in the Compensation Warrant Certificates;
(j) ensure that at all times prior to the expiry of the Compensation Warrants, a sufficient number of Compensation Shares are allotted and reserved for issuance upon the due exercise of the Compensation Warrants in accordance with their terms;
(k) ensure that the Compensation Shares issuable upon the due exercise of the Compensation Warrants, in accordance with their terms, shall be duly issued as fully paid and non-assessable Common Shares of the Corporation on payment of the purchase price therefor;
(l) subject to applicable law, obtain the prior approval of the Agents as to the content and form of any press release relating to the Offering;
(m) use the net proceeds of the Offering for expansion and business development activities and general working capital;
(n) for the period of 120 days following the Closing Date, not, directly or indirectly, offer, issue, sell, grant, secure, pledge or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the Corporation, without the prior written consent of Xxxxxxx Xxxxx (such consent not to be unreasonably withheld), other than in conjunction with: (A) the grant or exercise of stock options and other similar issuances pursuant to the share incentive plan of the Corporation and other share compensation arrangements, provided that the exercise price thereof shall not be less than the Issue Price; (B) the exercise of outstanding warrants; (C) the obligations of the Corporation in respect of existing agreements; (D) the issuance of securities by the Corporation in connection with acquisitions in the normal course of business; or (E) the issuance of securities of the Corporation to [NAME REDACTED] or a fund associated with same (a “Follow-On Financing”), provided Xxxxxxx Xxxxx shall be paid a fee equal to 3% of the gross proceeds derived from any such Follow-On Financing completed on or before the date that is six months following the closing of the Offering;
(o) prior to the Closing Time, cause each of the directors and senior officers of the Corporation to enter into a lock-up undertaking in favour of the Agents pursuant to which such person and their respective affiliates will agree not to, directly or indirectly, directly or indirectly, offer, issue, sell, grant, secure, pledge or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the Corporation held by them, for a period of 120 days after the Closing Date, without the prior written consent of Xxxxxxx Xxxxx (such consent not to be unreasonably withheld), other than in order to accept a
(p) apply to have the Offered Shares and Compensation Shares posted and listed for trading on the CSE upon issuance; and
(eq) execute and file with the Corporation agrees to pay Securities Regulators all forms, notices and certificates relating to the Holder forthwith upon demand Offering required to be filed pursuant to the Securities Laws in the time required by applicable Securities Laws, including, for greater certainty, all costsforms, charges notices and expenses (including reasonable legal fees) of, or incurred certificates set forth in the opinions delivered to the Agents pursuant to this Agreement required to be filed by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderCorporation.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) The Corporation shall promptly advise the Holder of any change, event, occurrence, condition, circumstance, effect, fact or development which, individually or in the aggregate, has had, will have or could reasonably be expected to have a Material Adverse Effect, or any material inaccuracy in any representation or warranty or any breach of covenant of the Corporation covenants and agrees with the Holder that it shall repay all of the Principal and any interest thereon to the Holder contained in accordance with the terms hereof;this Agreement.
(b) The Corporation shall fulfill all necessary requirements and take all necessary action required to be taken by the Corporation shall give notice in writing forthwith to permit the creation, issuance and delivery by the Corporation of the Bond to the Holder pursuant to an exemption from the prospectus requirements of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;applicable securities laws.
(c) the The Corporation shall use its commercially reasonable efforts to preserve and maintain its corporate existence and status as a “reporting issuer” or the listing equivalent in each of the Common Shares on the Exchangeprovinces in Canada and not in default of any requirement of applicable securities laws, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares Corporation ceasing to be listed on the Exchange a “reporting issuer” so long as the holders of securities of Corporation Common Shares receive cash or securities of an entity which is listed on a recognized Canadian or U.S. stock exchange in Canada or cash, or such other exchange as may be agreed upon the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;Holder.
(d) subject The Corporation shall use its commercially reasonable efforts to maintain the express provisions hereoflisting of the Common Shares on the TSXV (or on the Toronto Stock Exchange), provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Corporation ceasing to be listed on the TSXV (or on the Toronto Stock Exchange) so long as the holders of Common Shares receive cash or securities of an entity which is listed on a stock exchange in Canada or such other exchange as may be agreed upon by the Corporation and the Holder.
(e) Forthwith after Closing, the Corporation shall carry on file such forms and conduct its business in a proper and efficient manner and, subject documents as may be required under securities laws relating to the express provisions hereoftransactions contemplated hereby, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderif any.
Appears in 1 contract
Samples: Convertible Bond Subscription Agreement (Nouveau Monde Graphite Inc.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) the Corporation covenants Special Warrants shall be duly and agrees validly authorized and created and upon the Conversion Date the Common Shares issuable upon conversion of the Special Warrants shall be issued as fully paid and non-assessable Common Shares;
(b) to duly, punctually and faithfully perform all the obligations to be performed by it under this Agreement;
(c) to file all documents or information required to be filed by Fibrek under applicable Laws with respect to the issuance and sale of the Special Warrants or the Common Shares issuable upon the conversion thereof in accordance with timelines prescribed under applicable Laws, and all such documents or information, when filed, shall comply as to form and substance in all material respects with the Holder that it shall repay all requirements of applicable Laws;
(d) until the earlier of the Principal issuance of the Common Shares upon the exercise or deemed exercise of the Conversion Right and any interest thereon to the Holder redemption of the Special Warrants in accordance with the terms hereof, to not take any action that would render, or may reasonably be expected to render, any representation or warranty made by it in this Agreement (i) that is qualified by a reference to a Material Adverse Effect misleading or untrue in any respect, or (ii) that is not qualified by a reference to a Material Adverse Effect untrue or incorrect in any respect unless the failure to be true or correct has not had or would not reasonably be expected to have, a Material Adverse Effect on Fibrek;
(be) the Corporation shall give notice to promptly notify Xxxxxx in writing forthwith of any Material Adverse Change and of any change in any representation or warranty provided by Fibrek in this Agreement which change is or may be of such a nature to render any representation or warranty misleading or untrue in any material respect, and Fibrek shall in good faith discuss with Xxxxxx any change in circumstances (actual, anticipated, contemplated, or to the Holder knowledge of the occurrence of any Event of DefaultFibrek, or other event threatened) which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature is of such default and/or Event of Default and the steps taken a nature that there may be a reasonable question as to remedy the samewhether notice need to be given to Xxxxxx pursuant to this provision;
(cf) the Corporation shall to use commercially all reasonable commercial efforts to preserve continue to be a “reporting issuer” (or the equivalent thereof) in each of the provinces and maintain its corporate existence territories of Canada and in material compliance with all Applicable Securities Laws in such provinces and territories, and the Common Shares shall continue to be listed on the TSX;
(g) to use all reasonable commercial efforts to obtain the acceptance of the TSX of the issuance and sale of the Special Warrants as provided herein and the approval of the TSX for the listing of the Common Shares issuable on conversion of the Special Warrants, and to satisfy any conditions imposed by the TSX in respect of such acceptance and approval;
(h) upon the exercise or deemed exercise (on the Exchange, provided that this covenant shall not prevent occurrence of a Deemed Conversion Event) of the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction Conversion Right in accordance with the requirements terms of applicable corporate and securities laws and this Agreement, Fibrek shall forthwith appoint such persons designated by Xxxxxx to the rules and policies Fibrek board of directors as shall be equal to the greater of: (i) two; or (ii) the number that is then equal to Xxxxxx’x proportionate ownership of the Exchangethen outstanding Common Shares;
(di) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep maintain in full force and effect its corporate existenceexistence and good standing under the laws of Canada; and
(ej) to diligently and in good faith complete the Corporation agrees Disclosure Letter and no later than five (5) Business Days after the date hereof deliver to pay Xxxxxx the completed Disclosure Letter, which shall be subject to approval by Xxxxxx at its entire satisfaction prior to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderClosing Date.
Appears in 1 contract
Samples: Special Warrant Agreement (Mercer International Inc.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder Underwriter that for so long as followsany Compensation Warrants remain outstanding:
(a) it will reserve and keep available, free from any pre-emptive rights, out of its authorized and unissued equity securities, a sufficient number of Common Shares for the Corporation covenants and agrees with purpose of enabling it to satisfy its obligations to issue Shares upon the Holder that it shall repay all exercise of the Principal and any interest thereon to the Holder in accordance with the terms hereofCompensation Warrants;
(b) it will cause the Corporation shall give notice in writing forthwith Common Shares and the certificates representing the Shares acquired pursuant to the Holder exercise of the occurrence of any Event of Default, or other event which Compensation Warrants to be duly issued and delivered in accordance with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the samethis Compensation Warrant Certificate;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing all Common Shares that are issued upon exercise of the Common Shares on the Exchangewill be issued as duly authorized, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cashvalidly issued, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate fully paid and securities laws and the rules and policies of the Exchangenon-assessable;
(d) subject it will make all requisite filings, including filings with securities regulatory authorities in Canada and the United States, in connection with the exercise of the Compensation Warrants and the issue of the Common Shares issuable upon exercise thereon, will maintain its status as a reporting issuer not in default in the each of the provinces of Canada;
(e) it will take such actions as may be reasonably necessary and as are within its power to ensure that all Shares may be so issued pursuant to the express provisions hereofterms hereof without violation of any applicable laws or the applicable requirements of any exchange upon which the Shares of the Corporation may be listed or in respect of which such Shares are qualified for unlisted trading privileges;
(f) it will use its best efforts to maintain its status as a reporting issuer not in default under, and not be in default in any material respect of the applicable requirements of, the applicable securities laws of each of the provinces of Canada and the federal securities laws of the United States from the date hereof up to and including the Time of Expiry;
(g) if any Shares, required to be reserved for the purpose of issue upon exercise of the Compensation Warrants hereunder require registration or approval of any governmental authority under any federal or state law before such Shares may be issued upon exercise of the Compensation Warrants, the Corporation shall carry on will its best efforts to cause such securities to be duly registered or approved, as the case may be, and conduct its business in a proper and efficient manner and, subject to the express provisions hereofextent practicable, take all action in anticipation of and prior to the exercise of the Compensation Warrants;
(h) it shall do use its best efforts to maintain its registration statement on Form S-3 (File No. 333-91666), or another registration statement on such form filed with the United States Securities and Exchange Commission with respect to the Shares and Compensation Warrants (the "Registration Statement"), continuously effective under the U.S. Securities Act so as to allow the unrestricted sale of the Shares to the public from time to time commencing on the Release Date and ending on the Time of Expiry (the "Registration Period"). The Corporation will file such post-effective amendments and supplements as may be necessary to maintain the currency of the Registration Statement during the period of its use. In addition if the Underwriter is advised by counsel that the Registration Statement, in their opinion, is deficient in any material respect, the Corporation will use its best efforts to cause the Registration Statement to be amended to eliminate the concerns raised. The Corporation will also file such applications and other documents necessary to permit the sale of the Shares to the public during the Registration Period all U.S. States in which the Shares are not otherwise exempt from such securities registration requirements. For purposes of the foregoing, "U.S. States" means the 50 states of the United States of America, the District of Columbia, Puerto Rico and Guam;
(i) the Corporation will furnish to the Underwriter the number of copies of a prospectus, in conformity with the requirements of Section 9 of the U.S. Securities Act, and such other documents as it may reasonably request, in order to facilitate the disposition of the Shares owned by it;
(j) it will use its best efforts to ensure that all Shares issued and outstanding, or issuable from time to time, will be listed and posted for trading on the Toronto Stock Exchange and the American Stock Exchange; and
(k) it will do, or cause to be done done, all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunder.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsAgent that:
(a) it will fulfill all legal requirements to permit the Corporation covenants creation, issue, offering and agrees sale of the Units, the creation and issue of the Warrants, the Agent Warrants and the Agent Unit Warrants, and the issue of the Unit Shares, the Warrant Shares, the Agent Warrant Shares and the Agent Unit Warrant Shares if applicable, as contemplated in this Agreement including, without limitation, compliance with the Holder that it shall repay all Applicable Securities Laws of the Principal Selling Jurisdictions to enable the Units to be offered for sale and any interest thereon sold to the Holder Subscribers and the Agent Warrants to be issued to the Agent without the necessity of filing a prospectus or registration statement in accordance with the terms hereofSelling Jurisdictions;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall it will use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the ExchangeCSE or other recognized stock exchange in Canada and maintain its status as a “reporting issuer” (or the equivalent thereof) and not be in default of the requirements of the Applicable Securities Laws of each of the Canadian Selling Jurisdictions to the date which is 24 months following the Closing Date, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares Corporation ceasing to be a “reporting issuer” or ceasing to be listed on the Exchange so long as the holders of securities of Corporation Common Shares receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange in Canada or the United States or cash, or and the holders of securities of Corporation the Common Shares have approved the transaction in accordance with the requirements of applicable corporate laws and securities laws the policies of the CSE (or such other applicable stock exchange upon which its Common Shares are listed);
(c) the Corporation will ensure that the Unit Shares upon issuance shall be duly issued as fully paid and non-assessable Common Shares, and shall have the attributes corresponding to the description thereof set forth in this Agreement;
(d) the Corporation will ensure that the Warrants upon issuance shall be duly and validly created, authorized and issued, and shall have the attributes corresponding to the description thereof set forth in this Agreement and the Warrant Indenture;
(e) the Corporation will ensure, at all times until the date that is 24 months following the Closing Date, that sufficient Warrant Shares are authorized and allotted for issuance upon due and proper exercise of the Warrants and that the Warrant Shares, upon issuance in accordance with the terms of the Warrant Indenture, if applicable, shall be duly issued as fully paid and non-assessable Common Shares, and shall have the attributes corresponding to the description thereof set forth in this Agreement and the Warrant Indenture;
(f) the Corporation will ensure that the Agent Warrants upon issuance shall be duly and validly created, authorized and issued, and shall have the attributes corresponding to the description thereof set forth in this Agreement and the Agent Warrant Certificates;
(g) the Corporation will ensure, at all times until the date that is 24 months following the Closing Date, that sufficient Agent Warrant Shares are authorized and allotted for issuance upon due and proper exercise of the Agent Warrants and that the Agent Warrant Shares, upon issuance in accordance with the terms of the Agent Warrant Certificates, if applicable, shall be duly issued as fully paid and non-assessable Common Shares, and shall have the attributes corresponding to the description thereof set forth in this Agreement and the Agent Warrant Certificates;
(h) the Corporation will ensure that the Agent Unit Warrants upon issuance shall be duly and validly created, authorized and issued, and shall have the attributes corresponding to the description thereof set forth in this Agreement and the Agent Unit Warrant Certificates;
(i) the Corporation will ensure, at all times until the date that is 24 months following the Closing Date, that sufficient Agent Unit Warrant Shares are authorized and allotted for issuance upon due and proper exercise of the Agent Unit Warrants and that the Agent Unit Warrant Shares, upon issuance in accordance with the terms of the Agent Unit Warrant Certificates, if applicable, shall be duly issued as fully paid and non-assessable Common Shares, and shall have the attributes corresponding to the description thereof set forth in this Agreement and the Agent Unit Warrant Certificates;
(j) the Corporation will have made or obtained, as applicable, at or prior to the Closing Time, all consents, approvals, Governmental Licences, permits, authorizations or filings as may be required by the Corporation under Applicable Securities Laws, necessary for the necessary for the execution and delivery of the Offering Agreements, the issue and/or sale of the Offered Securities, the Agent Warrants and the Underlying Securities and the consummation of the transactions contemplated herein, other than customary post-closing filings required to be submitted within the applicable time frame pursuant to Applicable Securities Laws and the rules and policies of the ExchangeCSE;
(dk) subject the Corporation will execute and file with the Securities Commissions in Canada and the CSE all forms, notices and certificates required to be filed by the Corporation pursuant to the express provisions Applicable Securities Laws in Canada and the rules and policies of the CSE in the time required by the Applicable Securities Laws in Canada and the rules and policies of the CSE, including Form 45-106F1 of NI 45- 106 and any other forms, notices and certificates set forth in the opinions delivered to the Agent pursuant to the closing conditions set forth in Section 6 hereof;
(l) the Corporation will use its best efforts to cause each of its directors and executive officers to enter into lock-up agreements in favour of the Agent in the form attached hereto as Schedule “B”;
(m) prior to the Closing Time, the Corporation shall carry allow the Agent the opportunity to conduct required due diligence and to obtain, acting reasonably, satisfactory results from such due diligence and in particular, the Corporation shall allow the Agent and Agent’s Counsel to conduct all due diligence which the Agent may reasonably require in order to confirm the Public Record is accurate, complete and current in all material respects and to fulfill the Agent’s obligations as a registrant and, in this regard, without limiting the scope of the due diligence inquiries that the Agent may conduct, the Corporation shall make available its senior management, directors and Technical Report authors to participate in one or more due diligence sessions (the “Due Diligence Sessions”) to answer any questions that the Agent may have, with such Due Diligence Sessions to be held prior to the Closing Date, and the Agent shall distribute a list of written questions to be answered at such Due Diligence Sessions;
(n) it will comply with all the obligations to be performed by it, and all of its covenants and agreements, under and pursuant to the Offering Agreements;
(o) during the period commencing on the date of this Agreement and conduct its business ending at the Closing Time, it will not make any public announcement in connection with the Offerings, without the prior consent to such announcement by the Agent, and will promptly provide to the Agent, for review and comment by the Agent and Agent’s Counsel, prior to filing or issuance of the same, provided that any such review will be completed in a proper timely manner, and efficient manner andthe Corporation will incorporate all reasonable comments of the Agent in any proposed public disclosure document, subject including without limitation, any financial statements of the Corporation, report to shareholders, information circular or any press release or material change report and any press release issued by the Corporation concerning the Offered Securities include the following or substantially similar legend: “NOT FOR DISTRIBUTION TO UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” “This news release does not constitute an offer to sell or a solicitation of an offer to buy 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 or sold within the United States or to, or for the account or benefit of, U.S. persons unless registered under the U.S. Securities Act and applicable securities laws of any state of the United States or an exemption from such registration is available. “United States” and “U.S. persons” are as defined in Regulation S under the U.S. Securities Act.”;
(p) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly notify the Agent in writing of any of the representations or warranties made by the Corporation in this Agreement being no longer true and correct;
(q) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly inform the Agent of the full particulars of any material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets; provided, however, that if the Corporation is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 5(q) has occurred, the Corporation shall promptly inform the Agent of the full particulars of the occurrence giving rise to the express provisions hereofuncertainty and shall consult with the Agent as to whether the occurrence is of such a nature;
(r) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly inform the Agent of the receipt by the Corporation of (i) any communication of a material nature from any Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority relating to the Corporation or the distribution of the Offered Securities, and (ii) the issuance by any Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose;
(s) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Agent and Agent’s Counsel with Applicable Securities Laws of the Canadian Selling Jurisdictions in which it shall do is a reporting issuer with respect to any material change, change, occurrence or cause event of the nature referred to be done all things necessary to preserve in Sections 5(q) and keep 5(r) above;
(t) the Corporation will use the proceeds from the sale of the Units as set out specifically in full force the Offering Document, namely for exploration of the Corporation’s QT Project and effect its corporate existencefor general working capital purposes; and
(eu) as soon as reasonably possible, and in any event by the Closing Date, the Corporation agrees shall take all such steps as may reasonably be necessary to pay enable the Offered Securities to be offered for sale and sold on a private placement basis to Subscribers in the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by Selling Jurisdictions through the Holder in connection with the realization of this Debenture Agent or any part thereof, other investment dealers or brokers registered in recovering or enforcing payment of any of the monies owing hereunderSelling Jurisdictions: (i) in the case of the LIFE Offering, by way of the LIFE Exemption, such that all Offered Securities issued pursuant to the LIFE Offering are issued as free-trading securities of the Corporation under Applicable Securities Laws in Canada; and (ii) in the case of the Private Placement, by way of available exemptions from the prospectus requirements of Applicable Securities Laws (excluding the LIFE Exemption), such that all Offered Securities issued pursuant to the Private Placement in Canada shall not be subject to a restricted period or to a hold period under Applicable Securities Laws in Canada which extends beyond four months and one day after the Closing Date.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) The Corporation will duly, punctually and faithfully perform all the Corporation covenants obligations to be performed by it under this Agreement, the Subscription Agreements, the Special Warrant Indenture, the Warrant Indenture, the Broker Special Warrant Certificate, the Underlying Broker Warrant Certificate and agrees with the Holder that it shall repay all of the Principal and any interest thereon to the Holder in accordance with the terms hereof;Corporate Finance Special Warrant Certificate.
(b) Prior to the filing of the Preliminary Prospectus and the Final Prospectus, the Corporation shall give allow the Agents the opportunity to conduct required due diligence and to obtain, acting reasonably, satisfactory results therefrom and in particular, the Corporation shall allow the Agents and Agents' counsel to conduct all due diligence which the Agents may reasonably require to fulfill the Agents' obligations as registrants and, in this regard, without limiting the scope of the due diligence inquiries the Agents may conduct, the Corporation shall make available its directors and senior management upon reasonable notice and shall use its reasonable commercial efforts to make available its independent auditors, in writing forthwith each case to answer any questions which the Agents may have and to participate in one or more due diligence sessions to be held prior to Closing, filing of the Preliminary Prospectus and the Final Prospectus (the "Due Diligence Session"); the Agents shall distribute a list of written questions to be answered reasonably in advance of such Due Diligence Session and the Corporation shall provide written responses to such questions and shall use its reasonable commercial efforts to have its independent auditors provide written responses to such questions in advance of the Due Diligence Session.
(c) The Corporation shall take all such steps as may reasonably be necessary to enable the Offering Special Warrants to be offered for sale and sold on a private placement basis to Subscribers in the Selling Jurisdictions on the Closing Date through the Agents or any other investment dealers or brokers comprising the Selling Dealer Group registered in any of the Selling Jurisdictions in Canada by way of the prospectus exemptions set forth in the Applicable Securities Laws.
(d) The Corporation will file, in a timely fashion, all necessary forms and reports in connection with the issuance of the Underlying Securities issuable upon the exercise or deemed exercise of the Special Warrants with the appropriate Securities Commissions and other regulatory authorities in the Selling Jurisdictions.
(e) The Corporation will on reasonable notice make available senior management to meet with potential investors if so requested by the Agents.
(f) The Corporation will carry on its business in a prudent manner in accordance with industry standards and good business practice and will keep or cause to be kept proper books of accounts.
(g) Notwithstanding any other provision hereof, in the event the Corporation prepares and files the Preliminary Prospectus, then prior to the Holder filing of the Preliminary Prospectus and thereafter and prior to the filing of the Final Prospectus, the Corporation will allow the Agents and Agents' counsel to participate fully in the preparation of the Preliminary Prospectus and Final Prospectus and allow the Agents to conduct all due diligence which the Agents may require reasonably (including one or more due diligence sessions to which the provisions of Section 5(b) will apply as if such sessions were the Due Diligence Session) in order to fulfill their obligations as Agents and to allow the Agents to responsibly execute any certificate in the Preliminary Prospectus or the Final Prospectus required to be executed by the Agents.
(h) In the event the Corporation prepares and files the Preliminary Prospectus, then after satisfaction of any comments of the BCSC, on behalf of the securities regulatory authorities in each of the provinces of Canada where such Preliminary Prospectus was filed, with respect to the Preliminary Prospectus, the Corporation will use its best efforts to file the Final Prospectus with the securities regulatory authorities in each of the provinces of Canada in which the Preliminary Prospectus was filed (except that the Corporation will not be obligated to file the Final Prospectus in any province of Canada other than Manitoba, Saskatchewan, British Columbia, Alberta and Ontario) as soon as reasonably practicable (together with all such other documents as may be required under the Applicable Securities Laws and any other securities laws applicable in each of the provinces of Canada in which the Final Prospectus will be filed) and use its best efforts to obtain a Receipt therefor as soon as practicable and to take all other steps as may be necessary to qualify the distribution of the Underlying Securities upon the exercise or deemed exercise of the Special Warrants in the Selling Jurisdictions, so that the holders of Special Warrants who are not "control persons" in respect of the Corporation are able to trade the Underlying Securities acquired upon the exercise or deemed exercise of the Special Warrants, to the extent permitted by applicable law, including the Applicable Securities Laws, after a Receipt for the Final Prospectus has been obtained without the requirement of filing a prospectus or utilizing or seeking an exemption from such requirement under applicable law, including the Applicable Securities Laws, on the condition that the holders of such Underlying Securities comply with applicable law, including the Applicable Securities Laws with respect to such trade.
(i) During the period commencing on the date of filing the Preliminary Prospectus and ending on the conclusion of the distribution of Underlying Securities upon the exercise or deemed exercise of the Special Warrants, the Preliminary Prospectus and the Final Prospectus (after the filing of same) will fully comply with the requirements of the Applicable Securities Laws and any other securities laws applicable in each of the provinces of Canada in which the Preliminary Prospectus or the Final Prospectus were filed, will provide full, true and plain disclosure of all material facts relating to the Corporation and the securities to be distributed by the Corporation pursuant to this Agreement (and any securities derived therefrom) and will not contain any misrepresentation, except that the Corporation does not covenant with respect to information or statements contained in or omitted from such documents relating solely to and supplied by the Agents and the foregoing covenant shall not be considered to be contravened as a consequence of any material change occurring after the date hereof or the occurrence of any Event event or state of Defaultfacts after the date hereof if, in each such case, the Corporation complies with Sections 6(a), 6(b) and 6(c) of this Agreement.
(j) The Corporation will prepare and file promptly at the Agents' request, acting reasonably, any amendment to the Preliminary Prospectus or Final Prospectus and take all such other steps in connection therewith which, in the opinion of Agents' counsel, may reasonably be necessary or advisable to comply with applicable law, including the Applicable Securities Laws.
(k) In the event the Corporation prepares and files the Preliminary Prospectus, the Corporation will cause to be delivered to the Agents, prior to the filing of the Preliminary Prospectus, a draft of the comfort letter which the auditors of the Corporation propose to deliver on the date of the filing of the Final Prospectus, addressed to the Agents, and in form and substance satisfactory to the Agents and Agents' counsel, acting reasonably, relating to the verification of the financial information and accounting data contained in the Final Prospectus and matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, together with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof executed letter from such auditors explaining the audit verifications and specifying other procedures which the nature auditors have completed to the date of such default and/or Event letter and stating that the auditors have no reason to believe that they will not be able to provide the comfort letter required by Section 5(l), in substantially the same form and content of Default the draft comfort letter provided for in this Section 5(k).
(l) In the event the Corporation prepares and files the Preliminary Prospectus and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereofFinal Prospectus, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary delivered to preserve the Agents, dated as of the date of the Final Prospectus and keep prior to the filing of the same with the applicable securities regulatory authorities, a comfort letter of the auditors of the Corporation addressed to the Agents, and in full force form and effect its corporate existence; andsubstance satisfactory to the Agents and Agents' counsel, acting reasonably, relating to the verification of the financial information and accounting data contained in the Final Prospectus and matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, to a date not more than two Business Days prior to the date of such letter.
(em) In the event of any amendment to the Preliminary Prospectus or the Final Prospectus, the Corporation agrees to pay shall deliver to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunder.Agents:
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants to and agrees with the Holder Warrant Agent that so long as followsany Warrants remain outstanding and may be exercised:
(a) it will reserve and keep available a sufficient number of Common Shares for the Corporation covenants and agrees with purpose of enabling it to satisfy its obligations to issue Common Shares upon the Holder that it shall repay all exercise of the Principal Warrants;
(b) it will cause the Common Shares and any interest thereon the certificates representing the Common Shares subscribed and paid for pursuant to the Holder exercise of the Warrants to be duly issued and delivered in accordance with the Warrant Certificates and the terms hereof;
(bc) the Corporation all Common Shares which shall give notice in writing forthwith to the Holder be issued upon exercise of the occurrence of any Event of Defaultright to purchase provided for herein and in the Warrant Certificates, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing payment of the Common Shares on the Exchange, Exercise Price herein provided that this covenant shall not prevent the Corporation from completing any transaction which would result for and in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance Warrant Certificates and upon compliance with the requirements of other applicable corporate terms and securities laws conditions hereof and the rules thereof, shall be fully paid and policies of the Exchangenon-assessable;
(d) subject it will give to the express provisions Warrantholders, in the manner provided in Section 3.6 hereof, and to the Warrant Agent in the manner provided in Section 13.1 hereof, notice of a record date, or effective date, as the case may be, for any event referred to in Article 5 hereof which may give rise to an adjustment in the Exercise Price or in the number of Common Shares purchasable upon the exercise of Warrants and, in each case, such notice shall specify the particulars of such event and the record date, or the effective date, for such event, provided that the Corporation shall carry only be required to specify in such notice such particulars of such event as shall have been fixed and determined on the date on which such notice is given, and conduct its business in a proper and efficient manner and, subject such notice shall be given concurrently with notice of such event to the express provisions hereof, holders of Common Shares;
(e) it shall do or cause to be done all things necessary to preserve and keep in full force and effect will maintain its corporate existence, provided that this subsection 7.1(e) shall not restrict the Corporation from completing a Capital Reorganization in accordance with subsection 5.2(d);
(f) it will not take any other action which might deprive the Warrantholders of the opportunity of exercising their right of purchase pursuant to the Warrants held by such Persons during the period of notice required by subsection 5.5(a);
(g) it will give written notice of the issue of Common Shares pursuant to the exercise of Warrants, if required and in such detail as may be required, to each securities regulatory authority in each relevant jurisdiction pursuant to applicable law;
(h) it will promptly notify the Warrant Agent and the Warrantholders in writing of any material default under the terms of this Warrant Indenture which remains unrectified for more than fifteen (15) days following its occurrence; and
(ei) the Corporation agrees to pay to the Holder forthwith upon demand it will perform all costs, charges of its covenants and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any carry out all of the monies owing hereunderacts or things to be done by it as provided in this Indenture.
Appears in 1 contract
Samples: Warrant Indenture (Energy Fuels Inc)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as followsUnderwriters that:
(a) prior to the Closing Date and prior to the Qualification Date (in connection with the filing of the A&R Base Shelf Prospectus, Prospectus Supplement and any Supplementary Material), the Corporation shall allow the Underwriters the opportunity to conduct required due diligence and to obtain, acting reasonably, satisfactory results from such due diligence and in particular, the Corporation shall allow the Underwriters and Underwriters' Counsel to conduct all due diligence which the Underwriters may reasonably require in order to confirm the Documents and the Public Record are accurate, complete and current in all material respects and to fulfill the Underwriters' obligations as a registrant and, in this regard, without limiting the scope of the due diligence inquiries that the Underwriters may conduct, the Corporation shall make available its senior management, directors and auditors to participate in one or more due diligence sessions (the "Due Diligence Sessions") to answer in person any questions that the Underwriters may have, the first such Due Diligence Session to be held prior to the Closing Date, and the Underwriters shall distribute a list of written questions to be answered in advance of such Due Diligence Sessions and the Corporation shall provide oral responses to such questions;
(b) if any of the facts or information underlying or supporting the statement provided in the Corporation's Due Diligence Session Responses have changed prior to the Qualification Date, the Corporation shall provide the Underwriters with prompt notice of the particulars of any such changes;
(c) it will comply with all the obligations to be performed by it, and all of its covenants and agrees agreements, under and pursuant to the Transaction Agreements;
(d) during the period commencing on the date of this Agreement and ending on the Qualification Date, it will promptly provide to the Underwriters, for review by the Underwriters and Underwriters' Counsel, prior to filing or issuance of the same, any press release or material change report related to the Offering and any press release issued by the Corporation concerning the Special Warrants or the Underlying Securities is to include the following or substantially similar legend: "NOT FOR DISTRIBUTION TO UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES." and applicable legends required under Rule 135e under the U.S. Securities Act;
(e) during the period commencing on the date of this Agreement and ending at the Closing Time, promptly notify the Underwriters in writing of any of the representations or warranties made by the Corporation in this Agreement being no longer true and correct in any material respect;
(f) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly inform the Underwriters of the full particulars of any material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets; provided, however, that if the Corporation is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 5(f) has occurred, the Corporation shall promptly inform the Underwriters of the full particulars of the occurrence giving rise to the uncertainty and shall consult with the Holder that it shall repay all Underwriters as to whether the occurrence is of such a nature;
(g) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly inform the Underwriters of the Principal and receipt by the Corporation of (i) any interest thereon communication of a material nature from any Securities Regulator or similar regulatory authority, any stock exchange or any other Governmental Authority relating to the Holder Corporation or the distribution of the Special Warrants, and (ii) the issuance by any Securities Regulator or similar regulatory authority, any stock exchange or any other Governmental Authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose;
(h) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters and Underwriters' Counsel with the Canadian Securities Laws of the Qualifying Provinces in which it is then a reporting issuer with respect to any material change, change, occurrence or event of the nature referred to in Sections 5(f) and 5(g) above;
(i) the Corporation will use the net proceeds from the Offering to support the growth of its business and for working capital and general corporate purposes;
(j) as soon as reasonably possible, and in any event by the Closing Date, the Corporation shall take all such steps as may reasonably be necessary to enable the Special Warrants to be offered for sale and sold on a private placement basis to Subscribers in the Selling Jurisdictions through the Underwriters in any of the Selling Jurisdictions in accordance with the terms hereof;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceAgreement; and
(ek) the Corporation agrees to pay Prospectuses (including the documents incorporated by reference therein) and any Supplementary Material will, as at the date thereof: (i) contain no misrepresentation; and (ii) constitute full, true and plain disclosure of all material facts relating to the Holder forthwith upon demand all costsCorporation and the Underlying Securities, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any as required under Canadian Securities Laws of the monies owing hereunderQualifying Provinces.
Appears in 1 contract
Samples: Underwriting Agreement (HIVE Blockchain Technologies Ltd.)
Covenants of the Corporation. The Corporation hereby covenants to and agrees with the Holder Underwriters, on their own behalf and on behalf of the Purchasers, as applicable, as follows:
(a) the Corporation covenants will cause the Offered Shares to be validly issued as fully-paid and agrees with the Holder that it shall repay all of the Principal and any interest thereon to the Holder in accordance with the terms hereofnon-assessable;
(b) the Corporation shall give notice in writing forthwith will use its commercially reasonable efforts to obtain the necessary consents from the Stock Exchange for the issuance of the Offered Shares on such conditions as are acceptable to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default Underwriters and the steps taken to remedy the sameCorporation, acting reasonably;
(c) the Corporation shall will use its commercially reasonable efforts to preserve and maintain its corporate existence and arrange for the listing and posting for trading of the Common Offered Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Stock Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchangeupon their issue;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business ensure that the Offered Shares have the attributes corresponding in a proper and efficient manner and, subject all material respects to the express provisions hereofdescription thereof set forth in, it shall do or cause to be done all things necessary to preserve as applicable, this Agreement and keep in full force and effect its corporate existencethe Prospectus; and
(e) the Corporation agrees to pay that it shall obtain prior approval of the Underwriters as to the Holder forthwith upon demand all costscontent and form of any press release relating to the Offering, charges and expenses such approval not to be unreasonably withheld or delayed. In addition, if required by Applicable Securities Laws, any press release announcing or otherwise referring to the Offering shall include (including reasonable legal feesi) ofan appropriate notation on each page as follows: “Not for distribution to U.S. news wire services, or incurred by dissemination in the Holder in connection with United States”; and (ii) a prominent notation of a cautionary statement to the realization following effect: “This news release does not constitute an offer to sell or a solicitation of this Debenture or any part thereof, or in recovering or enforcing payment of an offer to buy any of the monies owing hereundersecurities 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 or sold within the United States unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available.”.
Appears in 1 contract
Samples: Underwriting Agreement (Silver Elephant Mining Corp.)
Covenants of the Corporation. The Corporation hereby covenants and agrees with that until the Holder as followsIndebtedness shall have been satisfied in full, the Corporation shall:
(a) use the Trademarks only on goods of at least as high quality as the goods on which the Corporation covenants or its predecessor used the goods as of the date hereof and agrees maintain the quality of any and all products in connection with which the Trademarks and other Collateral is used, consistent with the Holder that it shall repay all quality of said products as of the Principal and any interest thereon to the Holder in accordance with the terms date hereof;
(b) take or cause to be undertaken all steps necessary to protect the Corporation shall give notice Corporation's interest in writing forthwith and to maintain the Patents/Designs/Copyrights, Trademarks and Licenses and other Collateral in good standing, including without limitation, to pursue diligently all applications through to registration and to renew all registrations and pay all maintenance fees as applicable, as well as attending to the Holder filing of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameall required documentation;
(c) the Corporation shall use commercially reasonable efforts to vigorously protect, preserve and maintain its corporate existence and the listing all of the Common Shares on the ExchangeCorporation's right, provided that this covenant shall not prevent the Corporation from completing any transaction which would result title and interest in the Common Shares ceasing to be listed on Collateral, including, without limitation, the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian prosecution and/or defence against any and all suits concerning validity, infringement, enforceability, ownership or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies other aspects affecting any of the ExchangeCollateral (any expenses incurred in protecting, preserving and maintaining any of the Collateral shall be borne by the Corporation);
(d) subject upon written request by the Agent, execute and deliver any and all agreements, instruments, documents and papers as the Agent may reasonably request to evidence the express provisions hereofAgent's Security Interest in the Collateral;
(e) perform all covenants required under any Third Party Agreement including, inter alia, promptly paying all required fees, royalties and taxes to maintain each and every item of the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep Collateral in full force and effect effect;
(f) if at any time or from time to time, before the Indebtedness shall have been satisfied in full, the Corporation (i) becomes aware of any existing Patents/Designs/Copyrights, Trademarks or Licenses of which the Corporation has not previously informed the Agent, (ii) obtains rights to any new Patents/Designs/Copyrights, Trademarks or Licenses, or (iii) becomes entitled to the benefit of any Patents/Designs/Copyrights, Trademarks, or Licenses not identified on any of Xxxxxxxx "X", "X" or "C", then the Corporation shall promptly notify the Agent and regardless of when the Corporation so notifies the Agent, Exhibits "A", "B" and "C" hereto, as applicable, automatically shall be modified and amended to include any such Patents/Designs/Copyrights, Trademarks and Licenses and the provisions of this Agreement automatically shall apply thereto;
(g) maintain up to date records regarding the Collateral;
(h) provide the Agent with a written report on each anniversary of this Agreement regarding the status of all Patents/Designs/Copyrights, Trademarks and Licenses;
(i) provide the Agent, upon request by the Agent from time to time, with a certificate of an officer of the Corporation certifying the compliance of the Corporation with this Agreement;
(j) not sell, transfer, assign or dispose of its corporate existenceinterest in, or grant any license or sublicense under any of the Patents/Designs/Copyrights or Trademarks or the Licenses or the Goodwill, or enter into any other agreement with respect to any of the Collateral, without the prior written consent of the Agent, which consent shall not be unreasonably withheld;
(k) not abandon any right to file a trademark application or patent application, or abandon any pending trademark or patent application, or abandon any of the Patents/Designs/Copyrights, Trademarks, Licenses or Goodwill or any suits involving any of the Collateral, without the prior written consent of the Agent, which consent of the Agent shall not be unreasonably withheld;
(l) not take any action, or permit any action to be taken by any person or persons subject to its control, including licensees, or fail to take any action, which would adversely affect the validity, enforceability or transferability (to the Agent or otherwise) of all or any of the Collateral; and
(em) not create or permit to exist any mortgage, hypothec, pledge, charge, lien or other encumbrance upon the Corporation agrees Collateral, other than the existing Permitted Encumbrances, except as expressly consented to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred in writing by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderAgent.
Appears in 1 contract
Covenants of the Corporation. 11.1 The Corporation hereby covenants and agrees with the Holder as followsto:
(a) duly and validly create and authorize the Corporation covenants and agrees with the Holder that it shall repay all issuance of the Principal Subscribed Receipts and any interest thereon to the Holder Underlying Shares in accordance with the terms hereofand subject to the conditions of the Transaction Documents;
(b) not to declare any dividends before the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameClosing Date;
(c) cause the Corporation shall use commercially reasonable efforts Underlying Shares to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchangebe, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction upon their issuance in accordance with the requirements terms and subject to the conditions of applicable corporate and securities laws this Agreement and the rules Subscription Receipt Agreement, issued as fully paid and policies of the Exchangenon-assessable Common Shares;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do pay or cause to be done paid all things amounts due to be paid by it to the Investor in accordance with the terms and subject to the conditions of this Agreement and the Subscription Receipt Agreement, including the Commitment Fee XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX, on the due dates for payment in immediately available funds;
(e) at the Closing Time, issue the Subscribed Receipts in accordance with this Agreement and the Subscription Receipt Agreement;
(f) use the Private Placement Proceeds and the net proceeds of the Concurrent Private Placement for the partial payment of the Acquisition Purchase Price and costs of the Acquisition;
(g) comply with its covenants set forth in this Agreement and fulfil its obligations under this Agreement duly, timely and in good faith;
(h) not amend its constating documents prior to the Closing Date without the consent of the Investor, which consent shall not be unreasonably withheld;
(i) without the prior written consent of the Investor, which consent will not be unreasonably withheld or delayed, not to, and not to publicly disclose an intention to, for a period ending on the earlier of the Termination Date and the date that is ninety (90) days after the Closing Date, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, except for (i) the issuance by the Corporation of Subscription Receipts and Common Shares as contemplated herein or pursuant to the Concurrent Private Placement; XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX; (iii) the issuance by the Corporation of the Common Shares upon the exercise of an option or warrant or the conversion of a security outstanding as of the date of this Agreement; (iv) the issuance by the Corporation of any Common Shares or options to acquire Common Shares or other award, right or grant pursuant to the Corporation’s stock option plan, deferred share unit plan, performance and restricted share unit plan or employee share purchase plan existing as of the date of this Agreement and the issuance of Common Shares in connection with the exercise, vesting or settlement of any such options, awards rights or grants; (v) the issuance by the Corporation of any Common Shares pursuant to a dividend reinvestment plan or optional share purchase plan; (vi) to satisfy existing contractual arrangements entered into prior to the date hereof and disclosed to the Investor in writing at or prior to such time as this Agreement is executed; or (vii) pursuant to the Corporation’s shareholder rights plan;
(j) during the period from the date of this Agreement and ending on the earlier of the Termination Date and the Closing Time, to promptly inform the Investor of the full particulars of:
(i) any material change (actual, anticipated, contemplated, proposed or threatened) in or affecting the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of (x) the Corporation and its Subsidiaries on a consolidated basis, or (y) the Business, in each case of which the Corporation becomes aware since the date of this Agreement (including as a result of the COVID 19 Outbreak but only to the extent that the material change occurs after the date of this Agreement). For greater certainty, any impact of the COVID-19 Outbreak on the Corporation or its Subsidiaries prior to the date hereof already disclosed in the Public Record or to the Investor shall not be considered; or
(ii) any request from any Securities Commission or similar regulatory authority for any material amendment to any document forming part of the Public Record or for any additional information of which the Corporation becomes aware since the date of this Agreement;
(iii) the issuance by any Securities Commission or similar regulatory authority, a stock exchange or other competent authority of any order to cease or suspend trading of any of the Corporation’s securities, or the institution, or threatened institution, of any proceedings for that purpose of which the Corporation becomes aware since the date of this Agreement;
(iv) any amendment or proposed amendment to the Concurrent Private Placement Subscription Agreement or the Acquisition Agreement, or any waiver of any condition to be satisfied, completed or otherwise met thereunder, or the termination of such agreements;
(v) the receipt by the Corporation of any material communication from any Securities Commission or similar regulatory authority, any stock exchange or any other competent authority relating to any document forming part of the Public Record or the distribution of the Subscribed Receipts, of which the Corporation becomes aware since the date of this Agreement; or
(vi) any notice or other correspondence received by the Corporation from any Securities Commission or similar regulatory authority requesting any information, meeting or hearing relating to the Private Placement, the Concurrent Private Placement or the Acquisition or any other event or state of affairs that the Corporation reasonably believes may be material to the Investor of which the Corporation becomes aware since the date of this Agreement;
(k) during the period from the date of this Agreement and ending on the earlier of the Termination Date or the fulfilment of the Escrow Release Conditions:
(i) use all commercially reasonable efforts to pursue the satisfaction of all of the necessary conditions in its control to preserve the completion, and keep the closing, of the Acquisition in full force accordance with and effect its corporate existencesubject to the terms and conditions of the Acquisition Agreement; and
(eii) promptly provide the Corporation agrees to pay Investor with such information as it may reasonably request regarding the status of the Acquisition (including, in relation to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any fulfillment of the monies owing hereunderconditions to the Acquisition) subject to any confidentiality, regulatory or other restrictions relating to the supply of such information.
Appears in 1 contract
Samples: Subscription Agreement (Cae Inc)
Covenants of the Corporation. The Corporation hereby covenants to the Agents and agrees with to each of the Holder as followsPurchasers and their permitted assigns, and acknowledges that each of them is relying on such covenants in purchasing the Special Warrants, that the Corporation shall:
(a) duly execute the Corporation covenants Subscription Agreements which have been duly completed by the Purchasers, the Special Warrant Indenture and agrees with the Holder that Warrant Indenture, and duly and punctually perform all the obligations to be performed by it shall repay all of under this Agreement, the Principal Subscription Agreements, the Special Warrant Indenture and any interest thereon to the Holder in accordance with the terms hereofWarrant Indenture;
(b) the Corporation shall give notice in writing forthwith fulfil or cause to be fulfilled, at or prior to the Holder Closing Date, each of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would conditions required to be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken fulfilled by it pursuant to remedy the samethis Agreement;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and obtain the listing approval of the Common TSX and NYSE Amex to list the Shares, Warrant Shares and Compensation Warrant Shares on the Exchange, provided such stock exchanges on that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity date which is listed on a recognized Canadian or U.S. stock exchange or cashfour months and one day after the Closing Date, or the holders of securities of Corporation have approved the transaction subject only to standard listing conditions in accordance with the requirements of applicable corporate and securities laws and the rules and policies respect of the ExchangeTSX and subject only to official notice of issuance if required in respect of NYSE Amex;
(d) use commercially reasonable efforts obtain the approval of the TSX to list the Warrants on such stock exchange on that date which is four months and one day after the Closing Dates, subject only to the express provisions hereofstandard listing conditions of the TSX;
(e) fulfil all legal requirements to permit the creation, issuance, offering and sale of the Corporation shall carry on Special Warrants as contemplated in this Agreement and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do file or cause to be done filed all things necessary documents, applications, forms or undertakings reasonably required to preserve be filed by the Corporation and keep take or cause to be taken all action reasonably required to be taken by the Corporation in full force connection with the purchase and effect its corporate existencesale of the Special Warrants so that the distribution of the Special Warrants may lawfully occur by way of exemption from the requirement to file a prospectus in Canada or a Registration Statement in the United States or similar document in any other jurisdiction;
(f) until the Exercise Date shall have occurred, use commercial reasonable efforts to promptly provide to the Agents and the Finder, prior to the publication, filing or issuance thereof, any communication to the public;
(g) ensure that the Special Warrants and Compensation Warrants when issued on the Closing Date contain all material attributes substantially in the form described in this Agreement and that the Shares and Warrants, the Warrant Shares and the Compensation Warrant Shares duly reserved and allotted for issuance upon the due exercise of the Special Warrants, Warrants or Compensation Warrants, as the case may be, in accordance with their terms;
(h) ensure that the Special Warrants (upon payment therefor), the Shares and Warrants (upon the deemed exercise of the Special Warrants), the Compensation Warrants, the Warrant Shares (upon due exercise of the Warrants) and the Compensation Warrant Shares (upon due exercise of the Compensation Warrants) will be validly issued as fully paid and non-assessable securities in the capital of the Corporation;
(i) comply with each of the covenants of the Corporation set out in the Subscription Agreements, the Special Warrant Indenture and the Warrant Indenture;
(j) use commercially reasonable efforts to obtain, at or prior to the Escrow Deadline, the Shareholder Approval; and
(ek) use commercially reasonable efforts to have the Registration Statement filed and declared effective by the SEC within four months of the date that the Shareholder Approval is obtained and to maintain the effectiveness of such registration statement until the earlier of (i) the Corporation agrees to pay date that is six months after the Expiry Date and (ii) the date on which all the Warrants have been exercised, and all the Common Shares not initially issued upon exercise of the Warrants pursuant to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by Registration Statement that were issued to the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any original Purchasers of the monies owing hereunderWarrants upon exercise of such Warrants have been resold, either pursuant to the Registration Statement or otherwise pursuant to Rule 144 under U.S. Securities Act or are no longer held by such original Purchaser, provided that the Corporation will in no way be liable or responsible to the Purchaser if notwithstanding such efforts such effectiveness does not occur within the foregoing time period or at all.
(l) use commercially reasonable efforts to apply to the SEC for exemptive relief in relation to the Corporation’s late filing of its Current Report on Form 8-K on May 11, 2010 to enable the Corporation to file the Registration Statement on Form S-3, if the Corporation otherwise meets the requirements of that form on the date it files the Registration Statement.
Appears in 1 contract
Samples: Agency Agreement (Vista Gold Corp)
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder each Underwriter as follows:
(a) To furnish to the Underwriters in Toronto, as directed by TD, without charge, on the business day next succeeding the date of this Agreement, as many copies of the Prospectuses and any supplements and amendments thereto or to the Registration Statement as you may reasonably request. Each delivery of the Prospectuses, will constitute the additional representation and warranty of the Corporation covenants to the Underwriters that, at the respective times of delivery, the Prospectuses being delivered (i) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) do not contain any misrepresentations (within the meaning of applicable Canadian Securities Laws), and agrees (iii) constitute full, true and plain disclosure of all material facts required to be disclosed by applicable law.
(b) To file, in a form approved by you, the Canadian Prospectus with the Holder that it shall repay all OSC and each of the Principal and any interest thereon to the Holder other Canadian Securities Commissions in accordance with the terms hereof;Shelf Procedures not later than the business day following the execution and delivery of this Agreement and to file the U.S. Prospectus with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act not later than the business day following the date of the execution and delivery of this Agreement; before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectuses, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(bc) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Corporation and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Unless previously consented to by the Bookrunners, acting on behalf of the Underwriters, not to take any action that would result in an Underwriter or the Corporation being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If at any time following the date of execution of this Agreement until the completion of the distribution of the Shares for purposes of Canadian Securities Laws and the Securities Act and the applicable rules and regulations of the Commission thereunder, to promptly inform the Underwriters in writing of the particulars of any actual, anticipated, threatened, or contemplated, material change, change in material fact, or other event or condition that could have been required to have been stated in the Prospectuses had that change, fact, event or condition arisen or been in effect on or prior to the date of the Prospectuses, and is of such a nature as could render any Prospectus misleading in the light of the circumstances or could result in it containing a misrepresentation (within the meaning of applicable Canadian Securities Laws).
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the U.S. Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as so amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as so amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters either of the Prospectuses (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Corporation) to which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of them) so that the statements in the Prospectuses as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectuses, as so amended or supplemented, will comply with applicable law.
(h) To comply with Section 57 of the Securities Act (Ontario) and with comparable provisions of Canadian Securities Laws and the Securities Act and the rules and regulations of the SEC thereunder, and prepare and file or deliver promptly at your request, any amendment or supplement to the Prospectuses, which, in your reasonable opinion may be necessary, to continue to qualify the Shares for distribution in each of the Canadian Qualifying Jurisdictions and the United States.
(i) To make generally available to the Corporation’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Corporation occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Corporation’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Corporation’s counsel and the Corporation’s auditors in connection with the registration, qualification and delivery of the Shares under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Preliminary Prospectuses, the Time of Sale Prospectus, the Prospectuses, any Marketing Materials (as hereinafter defined), any free writing prospectus prepared by or on behalf of, used by, or referred to by the Corporation and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs and expenses incident to listing the Shares on the NYSE and the TSX, (iv) the cost of printing certificates representing the Shares, if applicable, (v) the document production charges and expenses associated with printing this Agreement, and (vi) all other costs and expenses incident to the performance of the obligations of the Corporation hereunder for which provision is not otherwise made in this Section.
(k) To use its commercially reasonable efforts to have the Shares accepted for listing on the NYSE and the TSX and, through the period of distribution of the Shares, maintain the listing of the Shares on the NYSE and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges.
(l) To use the net proceeds of the offering of Shares in the manner specified in each of the Time of Sale Prospectus and the Prospectuses.
(m) Not to directly or indirectly issue any common shares of the Corporation or securities or other financial instruments convertible into or having the right to acquire common shares of the Corporation (other than pursuant to rights or obligations under securities or instruments outstanding) or enter into any agreement or arrangement under which it transfers to another, in whole or in part, any of the economic consequences of ownership of common shares of the Corporation, whether that agreement or arrangement may be settled by the delivery of common shares of the Corporation or other securities or cash, or agree to become bound to do so, or disclose to the public any intention to do so, for a period from the date of execution of this Agreement until 90 days following the Closing Date without the prior written consent of the Bookrunners, which consent will not be unreasonably withheld; provided that nothing herein shall prevent or restrict the Corporation from issuing or agreeing to issue any of its common shares or securities or other financial instruments convertible into or having the right to acquire its common shares (i) as consideration in connection with an acquisition of a business or entity, a consolidation, merger, combination or plan of arrangement, or a transaction or series of transactions entered into in response to an unsolicited bid by a third party to engage in any of the foregoing transactions, (ii) under any of the Corporation’s equity-based compensation plans, or (iii) pursuant to rights or obligations under securities or instruments outstanding on the date hereof or issued as permitted by (i) or (ii) above.
(n) During the distribution of the Shares: (i) the Corporation shall give notice prepare, in consultation with the Underwriters and their counsel, any “marketing materials” (as such term is defined in National Instrument 41-101 — General Prospectus Requirements) (“NI 41-101”) (“Marketing Materials”), including any template version thereof, to be provided to potential investors in the Shares, and approve in writing forthwith any such Marketing Materials (including any template version thereof), as may reasonably be requested by the Underwriters, such Marketing Materials to comply with Canadian Securities Laws and to be acceptable in form and substance to the Holder Underwriters and their counsel, acting reasonably, (ii) the Bookrunners shall, on behalf of the occurrence Underwriters, approve in writing any such Marketing Materials, as contemplated by the Canadian Securities Laws, prior to any Marketing Materials being provided to potential investors of any Event of Default, or other event which Shares and/or filed with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof the Canadian Securities Commissions; and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(ciii) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence shall: (A) file any such Marketing Materials (or any template version thereof) with the Canadian Securities Commissions as soon as reasonably practicable after such Marketing Materials are so approved in writing by the Corporation and the listing Bookrunners, on behalf of the Common Shares Underwriters, and in any event on or before the Exchangeday the Marketing Materials are first provided to any potential investor of Shares, and file any such Marketing Materials with the Commission pursuant to Rule 433(d) under the Securities Act on or before the day such Marketing Materials are first provided to any potential investor of the Shares, unless an exemption is available from such filing requirement and the conditions to the availability of such exemption are satisfied; and (B) remove or redact any comparables from any template version so filed, in compliance with the Shelf Procedures, prior to filing such template version with the Canadian Securities Commissions (but such comparables shall not be removed from the version filed with the Commission pursuant to Rule 433(d) under the Securities Act); provided that this covenant a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be delivered to the Canadian Securities Commissions in compliance with the Shelf Procedures by the Corporation, and a copy thereof provided to the Underwriters as soon as practicable following such filing.
(o) The Corporation and each Underwriter, on a several basis, covenants and agrees that, during the distribution of the Shares, it will not prevent provide any potential investor with any materials or information in relation to the distribution of the Shares or the Corporation from completing other than the Prospectuses and any transaction which would result amendments or supplements thereto, the free writing prospectuses identified in Schedule II hereto and the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction Marketing Materials in accordance with this Agreement, provided that: (A) any such materials that constitute Marketing Materials have been approved and filed in accordance with Section 7(n); and (B) any such materials that constitute “standard term sheets” as such term is defined in NI 41-101 have been approved in writing by the requirements of applicable corporate and securities laws Corporation and the rules and policies Bookrunners, on behalf of the Exchange;
(d) subject to Underwriters, and are provided in compliance with Canadian Securities Laws in each case only in the express provisions hereofCanadian Qualifying Jurisdictions. Notwithstanding the foregoing, following the approval and, filing of any Marketing Materials in accordance with 7(n), the Corporation shall carry on and conduct its business Underwriters may provide a “limited use version” as such term is defined in a proper and efficient manner and, subject NI 41-101) of such Marketing Materials to potential investors in the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep Shares in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection accordance with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderCanadian Securities Laws.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with that the Holder as followsCorporation shall:
(a) duly execute the Corporation covenants Subscription Agreements which have been duly completed by the Purchasers, the Special Warrant Certificates and agrees with the Holder that Special Warrant Indenture, and duly and punctually perform all the obligations to be performed by it shall repay all of under the Principal Subscription Agreements, the Special Warrant Certificates and any interest thereon to the Holder in accordance with the terms hereofSpecial Warrant Indenture;
(b) use commercially reasonable efforts to obtain the Corporation shall give notice in writing forthwith to the Holder approval of the occurrence TSX and NYSE Amex to list the Shares, Warrant Shares and Compensation Warrant Shares on such stock exchanges on that date which is four months and one day after the Closing Date, subject only to standard listing conditions in respect of any Event the TSX and subject only to official notice of Default, or other event which with lapse issuance if required in respect of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameNYSE Amex;
(c) use commercially reasonable efforts obtain the approval of the TSX to list the Warrants on such stock exchange on that date which is four months and one day after the Closing Dates, subject only to the standard listing conditions of the TSX;
(d) fulfil all legal requirements to permit the creation, issuance, offering and sale of the Special Warrants and file or cause to be filed all documents, applications, forms or undertakings reasonably required to be filed by the Corporation and take or cause to be taken all action reasonably required to be taken by the Corporation in connection with the purchase and sale of the Special Warrants so that the distribution of the Special Warrants may lawfully occur by way of exemption from the requirement to file a prospectus in Canada or a registration statement in the United States or similar document in any other jurisdiction;
(e) until the Exercise Date shall have occurred, use commercial reasonable efforts to promptly provide to the Finder, prior to the publication, filing or issuance thereof, any communication to the public;
(f) ensure that the Special Warrants and Compensation Warrants when issued on the Closing Date contain all material attributes substantially in the form described in this Agreement and that the Shares and Warrants, the Warrant Shares and the Compensation Warrant Shares duly reserved and allotted for issuance upon the due exercise of the Special Warrants, Warrants or Compensation Warrants, as the case may be, in accordance with their terms;
(g) ensure that the Special Warrants (upon payment therefor), the Shares and Warrants (upon the deemed exercise of the Special Warrants), the Compensation Warrants, the Warrant Shares (upon due exercise of the Warrants) and the Compensation Warrant Shares (upon due exercise of the Compensation Warrants) will be validly issued as fully paid and non-assessable securities in the capital of the Corporation;
(h) comply with each of the covenants of the Corporation set out in the Subscription Agreements and the Special Warrant Indenture; and
(i) use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchangeobtain, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian at or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject prior to the express provisions hereofEscrow Deadline, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderShareholder Approval.
Appears in 1 contract
Samples: Finder Agreement (Vista Gold Corp)
Covenants of the Corporation. 11.1 The Corporation hereby covenants and agrees with the Holder as followsto:
(a) duly and validly create and authorize the Corporation covenants and agrees with the Holder that it shall repay all issuance of the Principal Subscribed Receipts and any interest thereon to the Holder Underlying Shares in accordance with the terms hereofand subject to the conditions of the Transaction Documents;
(b) not to declare any dividends before the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameClosing Date;
(c) cause the Corporation shall use commercially reasonable efforts Underlying Shares to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchangebe, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction upon their issuance in accordance with the requirements terms and subject to the conditions of applicable corporate and securities laws this Agreement and the rules Subscription Receipt Agreement, issued as fully paid and policies of the Exchangenon-assessable Common Shares;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do pay or cause to be done paid all things amounts due to be paid by it to the Investor in accordance with the terms and subject to the conditions of this Agreement and the Subscription Receipt Agreement, including the Commitment Fee XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX, on the due dates for payment in immediately available funds;
(e) at the Closing Time, issue the Subscribed Receipts in accordance with this Agreement and the Subscription Receipt Agreement;
(f) use the Private Placement Proceeds and the net proceeds of the Concurrent Private Placement for the partial payment of the Acquisition Purchase Price and costs of the Acquisition;
(g) comply with its covenants set forth in this Agreement and fulfil its obligations under this Agreement duly, timely and in good faith;
(h) not amend its constating documents prior to the Closing Date without the consent of the Investor, which consent shall not be unreasonably withheld;
(i) without the prior written consent of the Investor, which consent will not be unreasonably withheld or delayed, not to, and not to publicly disclose an intention to, for a period ending on the earlier of the Termination Date and the date that is ninety (90) days after the Closing Date, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, except for (i) the issuance by the Corporation of Subscription Receipts and Common Shares as contemplated herein or pursuant to the Concurrent Private Placement; X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X ; (iii) the issuance by the Corporation of the Common Shares upon the exercise of an option or warrant or the conversion of a security outstanding as of the date of this Agreement; (iv) the issuance by the Corporation of any Common Shares or options to acquire Common Shares or other award, right or grant pursuant to the Corporation’s stock option plan, deferred share unit plan, performance and restricted share unit plan or employee share purchase plan existing as of the date of this Agreement and the issuance of Common Shares in connection with the exercise, vesting or settlement of any such options, awards rights or grants; (v) the issuance by the Corporation of any Common Shares pursuant to a dividend reinvestment plan or optional share purchase plan; (vi) to satisfy existing contractual arrangements entered into prior to the date hereof and disclosed to the Investor in writing at or prior to such time as this Agreement is executed; or (vii) pursuant to the Corporation’s shareholder rights plan;
(j) during the period from the date of this Agreement and ending on the earlier of the Termination Date and the Closing Time, to promptly inform the Investor of the full particulars of:
(i) any material change (actual, anticipated, contemplated, proposed or threatened) in or affecting the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of (x ) the Corporation and its Subsidiaries on a consolidated basis, or (y) the Business, in each case of which the Corporation becomes aware since the date of this Agreement (including as a result of the COVID 19 Outbreak but only to the extent that the material change occurs after the date of this Agreement). For greater certainty, any impact of the COVID-19 Outbreak on the Corporation or its Subsidiaries prior to the date hereof already disclosed in the Public Record or to the Investor shall not be considered; or
(ii) any request from any Securities Commission or similar regulatory authority for any material amendment to any document forming part of the Public Record or for any additional information of which the Corporation becomes aware since the date of this Agreement;
(iii) the issuance by any Securities Commission or similar regulatory authority, a stock exchange or other competent authority of any order to cease or suspend trading of any of the Corporation’s securities, or the institution, or threatened institution, of any proceedings for that purpose of which the Corporation becomes aware since the date of this Agreement;
(iv) any amendment or proposed amendment to the Concurrent Private Placement Subscription Agreement or the Acquisition Agreement, or any waiver of any condition to be satisfied, completed or otherwise met thereunder, or the termination of such agreements;
(v) the receipt by the Corporation of any material communication from any Securities Commission or similar regulatory authority, any stock exchange or any other competent authority relating to any document forming part of the Public Record or the distribution of the Subscribed Receipts, of which the Corporation becomes aware since the date of this Agreement; or
(vi) any notice or other correspondence received by the Corporation from any Securities Commission or similar regulatory authority requesting any information, meeting or hearing relating to the Private Placement, the Concurrent Private Placement or the Acquisition or any other event or state of affairs that the Corporation reasonably believes may be material to the Investor of which the Corporation becomes aware since the date of this Agreement;
(k) during the period from the date of this Agreement and ending on the earlier of the Termination Date or the fulfilment of the Escrow Release Conditions:
(i) use all commercially reasonable efforts to pursue the satisfaction of all of the necessary conditions in its control to preserve the completion, and keep the closing, of the Acquisition in full force accordance with and effect its corporate existencesubject to the terms and conditions of the Acquisition Agreement; and
(eii) promptly provide the Corporation agrees to pay Investor with such information as it may reasonably request regarding the status of the Acquisition (including, in relation to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any fulfillment of the monies owing hereunderconditions to the Acquisition) subject to any confidentiality, regulatory or other restrictions relating to the supply of such information.
Appears in 1 contract
Samples: Subscription Agreement (Cae Inc)
Covenants of the Corporation. The Corporation hereby covenants to the Agents and agrees the Subscribers, and acknowledges that each of them is relying on such covenants in connection with the Holder as followspurchase of the Offered Shares, that the Corporation shall:
(a) the Corporation covenants and agrees with the Holder maintain a system of internal accounting controls sufficient to provide reasonable assurance that it shall repay all of the Principal and any interest thereon to the Holder (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to monies and investments is permitted only in accordance with management’s general or specific authorization, and (iv) the terms hereofrecorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(b) at or prior to the Closing Time, satisfy all terms, conditions and covenants contained in this Agreement to be complied with or satisfied by the Corporation (unless waived by the Agents) in all material respects (except where already qualified by a materiality qualification, in which case the Corporation shall give notice have complied or satisfied in writing forthwith to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameall respects);
(c) ensure that, at the Closing Time, the Offered Shares and the Corporate Finance Shares will be issued as fully paid and non-assessable shares in the capital of the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence on payment of the purchase price therefor and the listing of Agents’ Warrants have been duly created and issued and shall have attributes corresponding in all material respects to the Common Shares on the Exchange, provided that description thereof set forth in this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws Agreement and the rules and policies of the ExchangeAgents’ Warrant Certificates, as applicable;
(d) subject ensure that, upon due exercise of the Agents’ Warrants in accordance with their terms, the Agents’ Warrant Shares shall be duly issued as fully paid and non- assessable shares in the capital of the Corporation on payment of the purchase price therefor;
(e) obtain all Authorizations or filings as may be required under Applicable Securities Laws or otherwise necessary for the execution and delivery of and the performance by the Corporation of its obligations hereunder and under the Subscription Agreements, other than customary post-closing filings required to be submitted within the applicable time frame pursuant to Applicable Securities Laws;
(f) use the net proceeds of the Offering for the Corporation’s North American clinical expansion, drug development and general working capital purposes;
(g) prepare and file all forms, documents, notices and certificates within prescribed time periods required by Securities Regulators in connection with the issuance and sale of the Offered Shares by the Corporation, so as to permit and enable such securities to be lawfully distributed on an exempt basis in the Selling Jurisdictions and any other jurisdictions where Offered Shares are offered and sold in accordance with this Agreement and the Subscription Agreements;
(h) prior to the express provisions hereofClosing Date:
(i) promptly notify the Agents (and, if requested by the Agents, confirm such notification in writing) of any material change or change in a material fact (in either case, whether actual, anticipated, contemplated or threatened, financial or otherwise) or any event or development involving a prospective material change or a change in a material fact or any other material change in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital, ownership, control or management of the Corporation which would constitute a material change to, or a change in a material fact concerning, the Corporation or any other change which is of such a nature; and
(ii) promptly, and in any event, within any applicable time limitation period, comply with all applicable filings and other requirements under Applicable Securities Laws as a result of such change. During such period, the Corporation shall carry on and conduct its business in good faith discuss with the Agents as promptly as possible any fact or change in circumstances (actual, anticipated, contemplated or threatened, financial or otherwise) which is of such a proper and efficient manner and, subject nature that there is reasonable doubt as to whether notice in writing need be given to the express provisions hereof, it shall do or cause Agents pursuant to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderSection 5(h)(ii).
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) the Corporation covenants Special Warrants shall be duly and agrees validly authorized and created and upon the Conversion Date the Common Shares issuable upon conversion of the Special Warrants shall be issued as fully paid and non-assessable Common Shares;
(b) to duly, punctually and faithfully perform all the obligations to be performed by it under this Agreement;
(c) to file all documents or information required to be filed by Profound under applicable Laws with respect to the issuance and sale of the Special Warrants or the Common Shares issuable upon the conversion thereof, in accordance with timelines prescribed under applicable Laws, and all such documents or information, when filed, shall comply as to form and substance in all material respects with the Holder that it shall repay all requirements of applicable Laws;
(d) until the earlier of the Principal issuance of the Common Shares upon the exercise or deemed exercise of the Conversion Right and any interest thereon to the Holder redemption of the Special Warrants in accordance with the terms hereof, to not take any action that would render, or may reasonably be expected to render, any representation or warranty made by it in this Agreement (i) that is qualified by a reference to a Material Adverse Effect misleading or untrue in any respect, or (ii) that is not qualified by a reference to a Material Adverse Effect untrue or incorrect in any respect unless the failure to be true or correct has not had or would not reasonably be expected to have, a Material Adverse Effect on Profound;
(be) the Corporation shall give notice to promptly notify PET in writing forthwith of any Material Adverse Change and of any change in any representation or warranty provided by Profound in this Agreement which change is or may be of such a nature to render any representation or warranty misleading or untrue in any material respect, and Profound shall in good faith discuss with PET any change in circumstances (actual, anticipated, contemplated, or to the Holder knowledge of the occurrence of any Event of DefaultProfound, or other event threatened) which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature is of such default and/or Event of Default and the steps taken a nature that there may be a reasonable question as to remedy the samewhether notice need to be given to PET pursuant to this provision;
(cf) the Corporation shall to use commercially all reasonable commercial efforts to preserve continue to be a "reporting issuer" (or the equivalent thereof) in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec and maintain its corporate existence New Brunswick and in material compliance with all Applicable Securities Laws in such provinces, and the Common Shares shall continue to be listed on the TSX;
(g) to use all reasonable commercial efforts to obtain the acceptance of the TSX of the issuance and sale of the Special Warrants as provided herein and the approval of the TSX for the listing of the Common Shares issuable on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies conversion of the Exchange;Special Warrants, and to satisfy any conditions imposed by the TSX in respect of such acceptance and approval; and
(dh) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep maintain in full force and effect its corporate existence; and
(e) existence and good standing under the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any laws of the monies owing hereunderProvince of Alberta.
Appears in 1 contract
Covenants of the Corporation. The Corporation hereby covenants and agrees with to the Holder as followsAgent that the Corporation:
(a) shall advise the Corporation covenants and agrees with the Holder that it shall repay all Agent, promptly after receiving notice thereof, of the Principal time when the Final Prospectus and any interest thereon Prospectus Amendment has been filed and receipts therefor have been obtained pursuant to the Holder in accordance with Passport System and will provide evidence reasonably satisfactory to the terms hereofAgent of each such filing and copies of such receipts;
(b) shall prior to the Closing Time (and the Agent’s Option Closing Time, as applicable), 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 give notice also make available its directors, senior management and counsel to answer any questions which the Agent may have and to participate in writing forthwith one or more due diligence sessions to be held prior to Closing (or the Holder Agent’s Option Closing Time) (collectively, the “Due Diligence Session”). The Agent shall distribute a list of the occurrence written questions in advance of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameeach Due Diligence Session;
(c) shall forthwith advise the Agent of, and provide the Agent with copies of, any written communications relating to:
(i) the issuance by any securities regulatory authority, including the TSX, of any order suspending or preventing the use of the Prospectus or any 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 receipt of any material communication from any securities regulatory authority, including the TSX, or other authority relating to the Prospectus or any Prospectus Amendment or the Offering;
(d) shall use its commercially reasonable best efforts to prevent the issuance of any order referred to in (c)(i) above and, if 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 soon as is reasonably practicable;
(e) 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 Canadian Selling Jurisdictions for as long as any Warrants or Additional Warrants remain outstanding, other than in a business combination or similar transaction where all the outstanding securities of the Corporation have been exchanged for cash or the securities of another issuer which is a reporting issuer under any Applicable Securities Laws;
(f) shall use its commercially reasonable best efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent TSX and the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a OTCQB or such other recognized Canadian or U.S. stock exchange or cashquotation system as the Agent may approve, acting reasonably, for as long as any Warrants or Additional Warrants remain outstanding, other than in a business combination or similar transaction where all the outstanding securities of the Corporation have been exchanged for cash or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchangeanother issuer which is a reporting issuer under any Applicable Securities Laws;
(dg) shall use its commercially reasonable efforts to ensure that the Unit Shares, the Warrant Shares and the Compensation Shares will be conditionally approved for listing on the TSX upon their issue;
(h) shall use the net proceeds of the Offering in the manner and subject to the express provisions hereof, qualifications described in the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to Prospectus under the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existenceheading “Use of Proceeds”; and
(ei) the Corporation agrees shall, as soon as practicable, use its commercially reasonable efforts to pay receive all necessary consents to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereundertransactions contemplated herein.
Appears in 1 contract
Samples: Agency Agreement (Titan Medical Inc)
Covenants of the Corporation. 8.1 The Corporation hereby covenants to the Agent, and agrees with acknowledges that the Holder as followsAgent is relying on such covenants, that:
(a) it will advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material have been filed and receipts therefor have been obtained and will provide evidence satisfactory to the Agent, of each filing and the issuance of receipts;
(b) it will advise the Agent, promptly after receiving notice or obtaining knowledge, of: (i) the issuance by any Regulatory Authority of any order suspending or preventing the use of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus or any Prospectus Amendment; (ii) the suspension of the qualification of the Offered Shares for Distribution or sale in any of the Selling Jurisdictions; (iii) the institution or threatening of any proceeding for any of those foregoing purposes; or (iv) any requests made by any Securities Commission for amending or supplementing the Prospectus, or for additional information, and will use its reasonable commercial efforts to prevent the issuance of any such order and, if any such order is issued, to obtain the withdrawal of the order promptly;
(c) it will ensure that, at the Closing Time, the Offered Shares, Agent's Commission Shares and Corporate Finance Fee Shares will be issued as fully paid and non-assessable shares in the capital of the Corporation covenants and agrees with the Holder that Compensation Options have been duly created and issued and shall have attributes corresponding in all material respects to the description thereof set forth in this Agreement and the Compensation Option Certificate, as applicable;
(d) it shall repay all will ensure that, upon due exercise of the Principal and any interest thereon to the Holder Compensation Options in accordance with the terms hereofthereof, the Compensation Shares shall be duly issued as fully paid and non- assessable shares in the capital of the Corporation on payment of the purchase price therefor;
(be) it will obtain all consents, approvals, Authorizations or filings as may be required under Canadian Securities Laws or otherwise necessary for the execution and delivery of and the performance by the Corporation of its obligations hereunder and under the Offering Documents, other than customary post-Closing filings required to be submitted within the applicable time frame pursuant to Canadian Securities Laws and the rules of the CSE;
(f) prior to the Closing Time, and at all times until the Closing Time, it will allow the Agent (and their counsel) to conduct all due diligence which the Agent may reasonably require or which may be considered necessary or appropriate by the Agent. The Corporation will provide the Agent (and their counsel) with reasonable access to the Corporation's senior management 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 their counsel) may conduct, the Corporation shall also make available its directors, senior management, auditors and legal 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 and prior to filing each of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus and the Final Prospectus;
(g) it will ensure that all required documentation for the listing of the Common Shares, Agent's Commission Shares, the Compensation Shares, upon the exercise of the Compensation Options, and the Corporate Finance Fee Shares, have been filed with the CSE on or prior to the Closing Date, subject to the satisfaction of Standard Listing Conditions set out in the conditional approval letter of the CSE for the Offering, a copy of which has been made available to the Agent, and CSE policies;
(h) it will (i) obtain from each of the Corporation's Principals and certain holders of Common Shares identified by the Agent, each of which is identified in Schedule "B" hereto, and (ii) obtain from certain holders of Common Shares identified by the Agent (collectively, the "Locked-up Persons"), a lock-up agreement with the Agent, in form satisfactory to the Agent, acting reasonably, whereby such Locked-up Persons agree that they will not, directly or indirectly, offer, sell, contract to sell, grant or sell any option to purchase, purchase any option or contract to sell, hypothecate, pledge, transfer, assign, lend, swap, or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with (or agree to or publicly announce any intention to do any of the foregoing) whether through the facilities of a stock exchange, by private placement or otherwise, any Common Shares or other securities of the Corporation convertible into, exchangeable for or exercisable to acquire, Common Shares, including securities acquired after the date hereof, directly or indirectly, for a period of 6 months from the date the Listing Date, unless (i) they first obtain the prior consent of the Agent, such consent not to be unreasonably withheld, conditioned or delayed, or (ii) there occurs a take-over bid or similar transaction involving a change of control of the Corporation (each, a "Lock-up Agreement");
(i) the Corporation will use the net proceeds of the Offering in the manner described in the Final Prospectus;
(j) it will, prior to the Closing Date:
(i) promptly notify the Agent (and, if requested by the Agent, confirm such notification in writing) of any material change or change in a material fact (in either case, whether actual, anticipated, contemplated or threatened, financial or otherwise) or any event or development involving a prospective material change or a change in a material fact or any other material change in the Business, affairs, operations, assets, liabilities (contingent or otherwise), capital, ownership, control or management of the Corporation which would constitute a material change to, or a change in a material fact concerning the Corporation or any other change which is of such a nature; and
(ii) promptly, and in any event, within any applicable time limitation period, comply with all applicable filings and other requirements under applicable Canadian Securities Laws as a result of such change. During such period, the Corporation shall give in good faith discuss with the Agent as promptly as possible any fact or change in circumstances (actual, anticipated, contemplated or threatened, financial or otherwise) which is of such a nature that there is reasonable doubt as to whether notice in writing forthwith need be given to the Holder of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken Agent pursuant to remedy the samethis Section 8.1(j);
(ck) it will use its reasonable commercial efforts to promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Agent may reasonably require from time to time for the purpose of giving effect to this Agreement and the transactions contemplated by the Final Prospectus and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement and the transactions contemplated by the Final Prospectus;
(l) except to the extent the Corporation shall participates in a merger, arrangement or other business combination transaction which is determined by the board of directors of the Corporation to be in the best interest of the Corporation and following which the Corporation ceases to be a "reporting issuer", the Corporation covenants to use its commercially reasonable efforts to preserve and maintain its corporate existence status as a "reporting issuer" (or the equivalent thereof) not in default of the requirements of the Canadian Securities Laws of each of the Qualifying Provinces which have such a concept to the date which is two years following the Closing Date; and
(m) except to the extent the Corporation participates in a merger, arrangement or other business combination transaction which is determined by the board of directors of the Corporation to be in the best interest of the Corporation and following which the Corporation ceases to be listed on the CSE, the Corporation covenants to use its commercially reasonable efforts to maintain the listing of the Common Shares on the Exchange, provided CSE or such other recognized stock exchange or quotation system to the date that this covenant shall not prevent is two years following the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange Closing Date so long as the holders Corporation meets the minimum listing requirements of securities of Corporation receive securities of an entity which is listed on a recognized Canadian the CSE or U.S. stock such other exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any of the monies owing hereunderquotation system.
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Corporation. The Corporation hereby covenants and agrees with the Holder as follows:
(a) The Corporation will, within the Corporation covenants and agrees required time, file with the Holder that it shall repay all of the Principal Regulators any documents, reports and any interest thereon to the Holder in accordance with the terms hereof;
(b) the Corporation shall give notice in writing forthwith to the Holder of the occurrence of any Event of Defaultinformation, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying the nature of such default and/or Event of Default and the steps taken to remedy the same;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing required form, required to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian filed by Applicable Securities Laws or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and by the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence; and
(e) the Corporation agrees to pay to the Holder forthwith upon demand all costs, charges and expenses (including reasonable legal fees) of, or incurred by the Holder Regulator in connection with the realization Offering, together with any applicable filing fees and other materials, including without limitation any documents or fees required to satisfy any conditions set out in the NYSE-American’s approval of this Debenture or any part thereofthe listing of the Underlying Shares, the Interest Shares and the Establishment Fee Shares.
(b) The Corporation shall use its commercially reasonable efforts (i) to file, within forty-five (45) days after the Closing Date, a registration statement (the “Registration Statement”) with the U.S. Securities and Exchange Commission (the “SEC”) under the U.S. Securities Act on Form F-3, if available, or on any other available form, to register (a) for resale by the Subscriber of the Underlying Shares, the Establishment Fee Shares, and any Interest Shares, and (b) for issuance to the Subscriber the estimated maximum number of Interest Shares potentially issuable in recovering or enforcing payment of the Interest Obligation on the Subscribed Debentures, together with any additional securities that have been issued or may become issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”); and (ii) to cause the Registration Statement to be declared effective by the SEC within one hundred and twenty (120) days after the Closing Date; and, in the event the Corporation determines, at any time, or from time to time, that the number of Interest Shares registered for issuance in payment of interest on the Subscribed Debentures will be insufficient to cover the full amount of the monies owing hereunderInterest Obligation payable in Interest Shares, the Corporation shall, within five (5) business days after the date of such determination (the “Determination Date”), notify the Subscriber of the number of Common Shares that must be registered to cover the shortfall (the “Shortfall Number”) and shall use its commercially reasonable efforts (A) to file another registration statement with the SEC on Form F-3, if available, or on any other available form (the “Shortfall Registration Statement”), to register for issuance to the Subscriber or for resale by the Subscriber, or both, as applicable, the Shortfall Number of Common Shares, together with any additional securities that have been issued or may become issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the Shortfall Number of Common Shares; and (B) to cause the Shortfall Registration Statement to be declared effective by the SEC as soon as is reasonably practicable, and in any event within one hundred and twenty (120) days after the Determination Date.
Appears in 1 contract
Covenants of the Corporation. 8.1 Positive Covenants in respect of the Corporation and Borealis Mining Company The Corporation hereby covenants and agrees with the Holder as followsTrustee for the benefit of the Trustee and the Noteholders that the Corporation will:
(a) duly and punctually pay or cause to be paid to each Holder of Subordinate Secured Notes the Corporation covenants principal thereof, interest accrued thereon, in each case payable thereon on the dates, at the places, in the currency, and agrees with in the Holder that it shall repay all of the Principal and any interest thereon to the Holder manner specified herein or as otherwise provided in accordance with the terms hereofsuch Subordinate Secured Notes;
(b) use the net proceeds received by the Corporation shall give notice in writing forthwith to from the Holder issuance of the occurrence Subordinate Secured Notes for general corporate purposes and general working capital of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof the Corporation and specifying the nature of such default and/or Event of Default and the steps taken to remedy the sameits Subsidiaries;
(c) the Corporation shall use commercially reasonable efforts to preserve and maintain its corporate existence and the listing of the Common Shares on the Exchange, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed on the Exchange so long as the holders of securities of Corporation receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, or the holders of securities of Corporation have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, so long as any of the Corporation shall Subordinate Secured Notes are outstanding, carry on and conduct or shall cause to be carried on and conducted its business and the business of Borealis Mining Company in a reasonably proper and efficient manner andand shall keep or cause to be kept proper books of account and make or cause to be made therein true and faithful entries of all its dealings and transactions in relation to its business and the business of Borealis Mining Company all in accordance with GAAP for itself and Borealis Mining Company and Borealis Mining Company shall continue to be a direct or indirect wholly-owned subsidiary of the Corporation;
(d) so long as any Subordinate Secured Notes are outstanding, furnish to the Trustee a copy of the consolidated financial statements, whether annual or interim, of the Corporation and any report of the Corporation’s Auditors thereon at substantially the same time as such financial statements are filed with securities regulatory authorities. Upon receipt of financial statements required to be delivered to the Trustee, the Trustee shall, while such statements are current, maintain custody of same and make same available for inspection by holders on their reasonable request. No obligation shall rest with the Trustee to analyze such statements, or evaluate the performance of the Corporation as indicated therein, in any manner whatsoever;
(e) subject to the express provisions hereof, it shall do so long as any of the Subordinate Secured Notes are outstanding, and will cause Borealis Mining Company to, at all times maintain its respective corporate existence, carry on and conduct its respective business in a reasonably proper, efficient and businesslike manner and in accordance with good business practice and diligently maintain, use and operate its respective properties so as to preserve and protect the earnings, incomes, rents, issues and profits thereof; and
(f) and will cause Borealis Mining Company to, from time to time pay or cause to be done paid all things necessary taxes, rates, levies, assessments (ordinary or extraordinary), government fees or dues lawfully levied, assessed or imposed upon or in respect of its respective property or any part thereof or upon its income and profits as and when the same become due and payable and to preserve withhold and keep remit any amounts required to be withheld by it from payments due to others and remit the same to any government or agency thereof, and it shall exhibit or cause to be exhibited to the Holder or Trustee, when requested, the receipts and vouchers establishing such payment and shall duly observe and conform to all applicable requirements of any Governmental Authority relative to any of the property or rights of the Corporation and of Borealis Mining Company and all covenants, terms and conditions upon or under which any such property or rights are held; provided, however, that the Borealis Mining Company shall have the right to contest in full force good faith and effect its corporate existencediligently by legal proceedings any such taxes, rates, levies, assessments, government fees or dues, and during such contest, may deliver or defer payment or discharge thereof.
8.2 Restrictive Covenants in respect of the Corporation and Borealis Mining Company The Corporation hereby covenants and agrees with the Trustee for the benefit of the Trustee and the Noteholders that it will not:
(a) and will not permit Borealis Mining Company or any other Subsidiary of the Corporation to, create, incur, assume or suffer to exist any Lien, other than Permitted Encumbrances;
(b) and will not permit Borealis Mining Company or any other Subsidiary of the Corporation to, directly or indirectly issue, incur, assume or otherwise become liable for or in respect of any Indebtedness, other than Permitted Borealis Indebtedness;
(c) convey, sell, lease, assign, transfer or otherwise dispose of any Secured Assets other than granting of liens consisting of the Permitted Encumbrances;
(d) permit Borealis Mining Company to, convey, sell, lease, assign, transfer or otherwise dispose of any of the Borealis Mine Assets, except as provided in Subsection (e), and except that Borealis Mining Company may:
(i) sell, transfer or otherwise dispose of equipment that is no longer used or useful or surplus equipment, vehicles, inventory and other assets in the ordinary course of business;
(ii) factor, sell or discount without recourse accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; and
(iii) enter into hedging facilities using unsecured options or other Financial Instrument Obligations to the extent entered into in good faith for bona fide hedging purposes;
(e) make or permit Borealis Mining Company to make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of any Affiliate of the Corporation agrees to pay or Borealis Mining Company (each, an “Affiliate Transaction”) other than:
(i) an Affiliate Transaction (a “Permitted Affiliate Transaction”) which is not material to the Holder forthwith upon demand Corporation on a consolidated basis and the Corporation pledges to the Trustee for the benefit of the Noteholders all costsof the outstanding voting securities of any new Subsidiary which holds all or part of the Borealis Mine Assets, charges and expenses with such new Subsidiary securities becoming part of the Secured Assets hereunder;
(including reasonable legal feesii) ofa Senior Creditor Transaction; and
(iii) nothing in this Indenture shall restrict or prevent any of the Corporation or Borealis Mining Company from incorporating, financing or otherwise dealing with any new Subsidiary, provided always that any such incorporation, financing or other dealings do not result in the creation of any Lien over, or incurred by Indebtedness with recourse to, the Holder in connection with Borealis Mine Assets and provided that any transfer of the realization Borealis Mine Assets to a new Subsidiary meets the requirements of this Debenture a Permitted Affiliate Transaction;
(f) declare or pay any part thereof, dividend or in recovering make any distribution or enforcing payment of any kind;
(g) issue, purchase, redeem or otherwise acquire for cash or retire for value any shares of capital stock or any warrants, rights or options to purchase or acquire shares of capital stock;
(h) and will not permit Borealis Mining Company to enter into any agreement restricting the right of Borealis Mining Company to declare or pay any dividend or make any distribution or payment of any kind;
(i) and will not permit Borealis Mining Company to, make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Borealis Indebtedness other than Permitted Borealis Indebtedness, that is not subordinated to the Notes; or
(j) and will not permit Borealis Mining Company to enter into any Senior Creditor Transaction without the approval of Holders of a majority in principal amount of the monies owing hereunderoutstanding Subordinate Secured Notes; except to the extent in the case of Subsections (e), (f), (g) and (i) above, that such declaration, dividend, distribution, payment, purchase, redemption, acquisition, retirement, defeasance, prepayment or decrease is used by the Corporation to repay or purchase the Subordinate Secured Note Indebtedness.
Appears in 1 contract
Samples: Note Indenture (Gryphon Gold Corp)
Covenants of the Corporation. The Corporation hereby covenants to the Subscriber, and agrees acknowledges that the Subscriber is relying on such covenants in connection with the Holder as followspurchase of the Units, that the Corporation (including its successors and assigns if applicable) will:
(a) within the Corporation covenants required time, file with any applicable securities agency or commission, any documents, reports and agrees information, in the required form, required to be filed by Applicable Securities Laws in connection with the Holder that it shall repay all of the Principal Offering, together with any applicable filing fees and any interest thereon to the Holder in accordance with the terms hereofother materials;
(b) use the Corporation shall give notice in writing forthwith to the Holder net proceeds of the occurrence of any Event of Default, or other event which with lapse of time and/or giving of notice or otherwise would be an Event of Default, forthwith upon becoming aware thereof and specifying Offering only as set forth in the nature of such default and/or Event of Default and the steps taken to remedy the sameTerm Sheet;
(c) ensure that at all times prior to the expiry of the Warrants, a sufficient number of Warrant Shares are allotted and reserved for issuance upon the due exercise of the Warrants in accordance with their terms;
(d) ensure that the Warrant Shares issuable upon the due exercise of the Warrants in accordance with their terms, shall be duly issued as fully paid and non-assessable Shares of the Corporation shall on payment of the exercise price therefor;
(e) use its commercially reasonable efforts to preserve and maintain its corporate existence status as a “reporting issuer” in, not in default of any requirement of the Applicable Securities Laws of, the Reporting Jurisdictions and to maintain its status as a reporting issuer under the U.S. Exchange Act that is current in its reporting obligations thereunder, in each case until the date that is two years following the Closing Date, other than in circumstances where the Corporation completes a reverse take-over, merger, amalgamation, arrangement, take-over bid, insider bid, reorganization, joint venture, sale of all or substantially all assets, exchange of assets or similar transaction whereby the Corporation completes a business combination with another public corporation;
(f) not take any action which would reasonably be expected to result in the delisting or suspension of the Shares on or from any securities exchange, market or trading or quotation facility on which the Shares are now or are then listed or quoted and the listing Corporation shall comply with the rules and regulations thereof for a period of two years following the Common Shares on the ExchangeClosing Date, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares Corporation ceasing to be listed on the Exchange so long as the holders of securities of Corporation Shares receive securities of an entity which is listed on a recognized Canadian or U.S. stock exchange or cash, in Canada or the holders of securities of Corporation the Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the rules and policies of the Exchange;
(d) subject to the express provisions hereof, the Corporation shall carry on and conduct its business in a proper and efficient manner and, subject to the express provisions hereof, it shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existencetransaction; and
(eg) for a period of at least two years after the Closing Date (other than in circumstances where the Corporation agrees completes a reverse take-over, merger, amalgamation, arrangement, take-over bid, insider bid, reorganization, joint venture, sale of all or substantially all assets, exchange of assets or similar transaction whereby the Corporation completes a business combination with another public corporation), use its commercially reasonable efforts to pay to remain a corporation validly subsisting under the Holder forthwith upon demand Laws of its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial or foreign corporation in all costs, charges and expenses (including reasonable legal fees) of, jurisdictions where the character of its properties owned or incurred by leased or the Holder in connection with the realization of this Debenture or any part thereof, or in recovering or enforcing payment of any nature of the monies owing hereunderactivities conducted by it make such licensing, registration or qualification necessary and shall carry on its business in the ordinary course and in compliance in all material respects with all applicable Laws, rules and regulations of each such jurisdiction.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Rise Gold Corp.)