Distribution of Common Shares. Section 5.1 Each of the Underwriters covenants and agrees with the Corporation and the Selling Shareholders: (a) to offer the Offered Shares for sale to the public in Canada and the United States, directly and through other investment dealers and brokers (the Underwriters, together with such other investment dealers and brokers, referred to herein as the “Selling Firms”), only in compliance with all applicable Securities Laws, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement; (b) to offer the Offered Shares for sale to the public outside of Canada and the United States, directly and through other Selling Firms, only in compliance with all applicable laws and regulations, provided such offers do not require the Corporation to comply with the registration, prospectus, continuous disclosure filing or other similar requirements under the laws of such jurisdictions, in each jurisdiction into and from which they may offer or sell the Offered Shares, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement; (c) they will not make use of any “marketing materials” or “standard term sheet” (within the meaning of applicable Canadian Securities Laws) in respect of the Corporation and the Offering without the approval of the Corporation and the Selling Shareholders, acting reasonably, provided that the approval of the Corporation and the Selling Shareholders shall be deemed to have been given in respect of the term sheet included in Annex D hereto; (d) to use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Offered Shares as soon as possible after the Closing Time. Section 5.2 The Underwriters may offer the Offered Shares at a price less than the Offering Price in compliance with Securities Laws and, specifically in the case of any Offered Shares offered in the Provinces and Territories, the requirements of NI 44-101 and the disclosure concerning the same which is contained in the Canadian Prospectuses. Section 5.3 For the purposes of this Article 5, the Underwriters shall be entitled to assume that the distribution of the Offered Shares is qualified in each of the Provinces and Territories and that the Offered Shares are registered under U.S. federal securities laws after receipt by the Co-Lead Underwriters of notification from the Corporation’s counsel that a Passport Receipt for the Canadian Final Prospectus has been issued and that the Registration Statement has been declared effective, as applicable, unless the Underwriters receive notice to the contrary from the Corporation or any applicable securities regulatory authority. Section 5.4 No Underwriter will be liable to the Corporation under this Article 5 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) or the Corporation under this Agreement if the Underwriter first mentioned is not itself in violation. Section 5.5 The Co-Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Shares and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Shares distributed in each of the Provinces and Territories where such breakdown is required for the purpose of calculating fees payable to a Securities Commission. Section 5.6 No Underwriter will make any representations or warranties with respect to the Corporation, the Selling Shareholders or the Offered Shares other than as set forth in this Agreement, the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, or any Prospectus Amendment, as applicable.
Appears in 1 contract
Distribution of Common Shares. Section 5.1 Each of the Underwriters covenants and agrees with the Corporation Company and the Selling ShareholdersShareholder:
(a) to offer the Offered Shares for sale to the public in Canada and the United States, directly and through other investment dealers and brokers (the Underwriters, together with such other investment dealers and brokers, referred to herein as the “Selling Firms”), only in compliance with all applicable Securities Laws, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement;
(b) to offer the Offered Shares for sale to the public outside of Canada and the United States, directly and through other Selling Firms, only in compliance with all applicable laws and regulations, provided such offers do not require the Corporation Company to comply with the registration, prospectus, continuous disclosure filing or other similar requirements under the laws of such jurisdictions, in each jurisdiction into and from which they may offer or sell the Offered Shares, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement;
(c) they will not make use During the distribution of the Offered Shares:
(i) the Company shall prepare, in consultation with the Lead Underwriters, any “marketing materials (including any template version thereof) to be provided to potential investors of Offered Shares, and approve in writing any such marketing materials (including any template version thereof), as may reasonably be requested by the Underwriters no less than two (2) Business Days prior to its intended use, such marketing materials to comply with Canadian Securities Laws and to be acceptable in form and substance to the Underwriters and their counsel, acting reasonably;
(ii) the Lead Underwriters shall, on behalf of the Underwriters, approve in writing any such marketing materials” or “standard term sheet” (within the meaning of applicable , as contemplated by and prepared in compliance with Canadian Securities Laws, prior to any marketing materials being provided to potential investors of Offered Shares and/or filed with the Securities Commissions; and
(iii) the Company shall: (i) (A) file any such marketing materials (or any template version thereof) with the Securities Commissions as soon as reasonably practicable after such marketing materials are so approved in respect writing by the Company and the Lead Underwriters, on behalf of the Corporation Underwriters, and in any event on or before the day the marketing materials are first provided to any potential investor in the Offered Shares; and (B) file any such marketing materials with the SEC pursuant to Rule 433 under the U.S. Securities Act on or before the day such marketing materials are first provided to any potential investor in the Offered Shares, unless an exemption is available from such filing requirement and the Offering without conditions to the approval availability of such exemption are satisfied; and (ii) remove or redact any comparables from any template version so filed, in compliance with NI 44-101, prior to filing such template version with the Securities Commissions (but, for the avoidance of doubt, such comparables shall not be removed from the version filed with the SEC pursuant to Rule 433 under the U.S. Securities Act); provided that a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be delivered to the Securities Commissions in compliance with NI 44-101 by the Company, and a copy thereof provided to the Underwriters as soon as practicable following such filing. The French language version of any such marketing materials (or any template version thereof) shall be filed on SEDAR prior to or concurrently with the filing of the Corporation Final Prospectus as contemplated in this Underwriting Agreement and the Selling Shareholders, acting reasonably, provided that the approval a copy of the Corporation and the Selling Shareholders such French language version shall be deemed delivered to have been given in respect of the term sheet included in Annex D heretoUnderwriters as soon as practicable following such filing;
(d) The Company and each Underwriter, on a several basis, covenants and agrees that, during the distribution of the Offered Shares, it will not provide any potential investor with any materials or information in relation to the distribution of the Offered Shares or the Company other than the Canadian Prospectuses and the U.S. Prospectuses in accordance with this Agreement, provided that: (i) any such materials that constitute marketing materials have been prepared, approved and filed in accordance with Section 5.1(c); and (ii) any such materials that constitute standard term sheets have been approved in writing by the Company and the Lead Underwriters and have been prepared and are provided in compliance with Canadian Securities Laws, in each case only in the Provinces;
(e) Notwithstanding Sections 5.1(c) and (d), following the preparation, approval and filing of a template version of marketing materials in accordance with Section 5.1(c), the Underwriters may provide a limited-use version of such template version to potential investors of Offered Shares in accordance with Canadian Securities Laws; and
(f) to use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Offered Shares as soon as possible after the Closing Time.
Section 5.2 The Underwriters may offer the Offered Shares at a price less than the Offering Price in compliance with Securities Laws and, specifically in the case of any Offered Shares offered in the Provinces and TerritoriesProvinces, the requirements of NI 44-101 and the disclosure concerning the same which is contained in the Canadian Prospectuses. Any decrease in the price at which the Offered Shares are offered will not decrease the amount of the net proceeds to the Selling Shareholder.
Section 5.3 For the purposes of this Article 5V, the Underwriters shall be entitled to assume that the distribution of the Offered Shares is qualified in each of the Provinces and Territories and that the Offered Shares are registered under the U.S. federal securities laws Securities Act after receipt by the Co-Lead Underwriters of notification from the CorporationCompany’s counsel that a Passport Receipt for the Canadian Final Prospectus has been issued and that the Registration Statement has been declared effective, as applicable, unless the Underwriters receive notice to the contrary from the Corporation Company or any applicable securities regulatory authority.
Section 5.4 No Underwriter will be liable to the Corporation Company under this Article 5 V with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) or the Corporation Company under this Agreement if the Underwriter first mentioned is not itself in violation.
Section 5.5 The Co-Lead Underwriters will notify the Corporation Company when, in their opinion, the Underwriters have ceased distribution of the Offered Shares and shall, as soon as practicable, provide the Corporation Company with a breakdown of the number of Offered Shares distributed in each of the Provinces and Territories where such breakdown is required for the purpose of calculating fees payable to a Securities Commission.
Section 5.6 No Underwriter will make any representations or warranties with respect to the CorporationCompany, the Selling Shareholders Shareholder or the Offered Shares other than as set forth in this Agreement, the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, or any Prospectus Amendment, as applicable.
Section 5.7 In performing their respective obligations under this Agreement, the Underwriters will be acting severally and not jointly and severally, and no Underwriter shall be liable for any act, omission or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter. Nothing in this Agreement is intended to create any relationship in the nature of a partnership, or joint venture among the Underwriters.
Appears in 1 contract
Distribution of Common Shares. Section 5.1 Each of the Underwriters covenants and agrees with the Corporation Company and the Selling ShareholdersShareholder:
(a) to offer the Offered Shares for sale to the public in Canada and the United States, directly (including through any affiliate of an Underwriter) and through other investment dealers and brokers (the Underwriters, together with such other investment dealers and brokers, referred to herein in this Agreement as the “"Selling Firms”"), only in compliance with all applicable Securities Laws, upon the terms and conditions set forth in the Base Prospectus, the Canadian Final Prospectus Supplements, the U.S. Prospectus Supplements or the U.S. Final ProspectusRegistration Statement, as applicable, any Prospectus Amendment and this Agreement;
(b) to offer the Offered Shares for sale to the public outside of Canada and the United States, directly (including through any affiliate of an Underwriter) and through other Selling Firms, only in compliance with all applicable laws and regulations, provided such offers do not require the Corporation Company or the Selling Shareholder to comply with the registration, prospectus, continuous disclosure filing or other similar requirements under the laws of such jurisdictions, in each jurisdiction into and from which they may offer or sell the Offered Shares, upon the terms and conditions set forth in the Base Prospectus, the Canadian Final Prospectus Supplements, the U.S. Prospectus Supplements or the U.S. Final ProspectusRegistration Statement, as applicable, any Prospectus Amendment and this Agreement;
(c) they will not make use of any “marketing materials” or “standard term sheet” (within During the meaning of applicable Canadian Securities Laws) in respect distribution of the Corporation and Offered Shares
(i) the Offering without Company shall prepare, in consultation with the approval of the Corporation Co-Lead Underwriters and the Selling ShareholdersShareholder, any marketing materials (including any template version thereof) to be provided to potential investors of Offered Shares, and approve in writing any such marketing materials (including any template version thereof), such marketing materials to comply with Securities Laws and to be acceptable in form and substance to the Underwriters, the Selling Shareholder and their respective counsel, acting reasonably;
(ii) the Co-Lead Underwriters shall, provided that the approval on behalf of the Corporation Underwriters, approve in writing any such marketing materials, as contemplated by and prepared in compliance with Securities Laws, prior to any marketing materials being provided to potential investors of Offered Shares and/or filed with the Securities Commissions; and
(iii) the Company shall: (i) (A) file any such marketing materials (or any template version thereof) with the Securities Commissions as soon as reasonably practicable after such marketing materials are so approved in writing by the Company, the Co-Lead Underwriters, on behalf of the Underwriters, and the Selling Shareholders Shareholder, and in any event on or before the day the marketing materials are first provided to any potential investor in the Offered Shares; and (B) file any such marketing materials with the SEC pursuant to Rule 433 under the U.S. Securities Act on or before the day such marketing materials are first provided to any potential investor in the Offered Shares, unless an exemption is available from such filing requirement and the conditions to the availability of such exemption are satisfied; and (ii) remove or redact any comparables from any template version so filed, in compliance with NI 44-102, prior to filing such template version with the Securities Commissions (but, for the avoidance of doubt, such comparables shall not be removed from the version filed with the SEC pursuant to Rule 433 under the U.S. Securities Act); provided that a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be deemed delivered to have been given the Securities Commissions in respect of compliance with NI 44-102 by the term sheet included in Annex D heretoCompany, and a copy thereof provided to the Underwriters as soon as practicable following such filing;
(d) The Company, the Selling Shareholder and each Underwriter, on a several basis, covenants and agrees that, during the distribution of the Offered Shares, it will not provide any potential investor with any materials or information in relation to the distribution of the Offered Shares, the Selling Shareholder or the Company other than the Offering Documents in accordance with this Agreement, provided that: (i) any such materials that constitute marketing materials have been prepared, approved and filed in accordance with Section 5.1(c) and (ii) any such materials that constitute standard term sheets have been approved in writing by the Company, the Co-Lead Underwriters and the Selling Shareholder and have been prepared and are provided in compliance with Canadian Securities Laws, in each case only in the Offering Provinces;
(e) Notwithstanding Section 5.1(c) and Section 5.1(d), following the preparation, approval and filing of a template version of marketing materials in accordance with Section 5.1(c), the Underwriters may provide a limited-use version of such template version to potential investors of Offered Shares in accordance with Canadian Securities Laws; and
(f) to use all commercially reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Offered Shares as soon as possible after the Closing Time.
Section 5.2 The Underwriters may offer the Offered Shares at a price less than the Offering Price in compliance with Securities Laws and, specifically in the case of any Offered Shares offered in the Provinces and TerritoriesOffering Provinces, the requirements of NI 44-101 and the disclosure concerning the same which is contained in the Canadian ProspectusesProspectus Supplements. Any decrease in the price at which the Offered Shares are offered will not decrease the amount of the net proceeds to the Selling Shareholder.
Section 5.3 For the purposes of this Article 5V, the Underwriters shall be entitled to assume that the distribution of the Offered Shares is qualified in each of the Offering Provinces and Territories and that the Offered Shares are registered under the U.S. federal securities laws after receipt by the Co-Lead Underwriters of notification from the Corporation’s counsel that a Passport Receipt for the Canadian Final Prospectus has been issued and that the Registration Statement has been declared effective, as applicableSecurities Act, unless the Underwriters receive notice in writing to the contrary from the Corporation Company or any applicable securities regulatory authority.
Section 5.4 No Underwriter will be liable to the Corporation Company under this Article 5 V with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) or the Corporation Company under this Agreement if the Underwriter first mentioned is not itself in violationdefault.
Section 5.5 The Co-Lead Underwriters will notify the Corporation Company when, in their opinion, the Underwriters have ceased distribution of the Offered Shares and shall, as soon as practicable, provide the Corporation Company with a breakdown of the number of Offered Shares distributed in each of the Offering Provinces and Territories where such breakdown is required for the purpose of calculating fees payable to a Securities Commission.
Section 5.6 No Underwriter will make any representations or warranties with respect to the CorporationCompany, the Selling Shareholders Shareholder or the Offered Shares other than as set forth in this Agreement, the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, or any Prospectus Amendment, as applicable.
Section 5.7 In performing their respective obligations under this Agreement, the Underwriters will be acting severally and not jointly and severally, and no Underwriter shall be liable for any act, omission or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter. Nothing in this Agreement is intended to create any relationship in the nature of a partnership, or joint venture among the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Metalla Royalty & Streaming Ltd.)
Distribution of Common Shares. Section 5.1 Each of the Underwriters covenants and agrees with the Corporation and the Selling ShareholdersCompany:
(a) to offer the Offered Shares for sale to the public in Canada and the United States, directly and through other investment dealers and brokers (the Underwriters, together with such other investment dealers and brokers, referred to herein as the “Selling Firms”), only in compliance with all applicable Securities Laws, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement;
(b) to offer the Offered Shares for sale to the public outside of Canada and the United States, directly and through other Selling Firms, only in compliance with all applicable laws and regulations, provided such offers do not require the Corporation Company to comply with the registration, prospectus, continuous disclosure filing or other similar requirements under the laws of such jurisdictions, in each jurisdiction into and from which they may offer or sell the Offered Shares, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement;
(c) they will not make use During the distribution of the Offered Shares:
(i) the Company shall prepare, in consultation with the Lead Underwriters, any “marketing materials (including any template version thereof) to be provided to potential investors of Offered Shares, and approve in writing any such marketing materials (including any template version thereof), as may reasonably be requested by the Underwriters no less than two (2) Business Days prior to its intended use, such marketing materials to comply with Canadian Securities Laws and to be acceptable in form and substance to the Underwriters and their counsel, acting reasonably;
(ii) the Lead Underwriters shall, on behalf of the Underwriters, approve in writing any such marketing materials” or “standard term sheet” (within the meaning of applicable , as contemplated by and prepared in compliance with Canadian Securities Laws, prior to any marketing materials being provided to potential investors of Offered Shares and/or filed with the Securities Commissions; and
(iii) the Company shall: (i) (A) file any such marketing materials (or any template version thereof) with the Securities Commissions as soon as reasonably practicable after such marketing materials are so approved in respect writing by the Company and the Lead Underwriters, on behalf of the Corporation Underwriters, and in any event on or before the day the marketing materials are first provided to any potential investor in the Offered Shares; and (B) file any such marketing materials with the SEC pursuant to Rule 433 under the U.S. Securities Act on or before the day such marketing materials are first provided to any potential investor in the Offered Shares, unless an exemption is available from such filing requirement and the Offering without conditions to the approval availability of such exemption are satisfied; and (ii) remove or redact any comparables from any template version so filed, in compliance with NI 44-101, prior to filing such template version with the Securities Commissions (but, for the avoidance of doubt, such comparables shall not be removed from the version filed with the SEC pursuant to Rule 433 under the U.S. Securities Act); provided that a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be delivered to the Securities Commissions in compliance with NI 44-101 by the Company, and a copy thereof provided to the Underwriters as soon as practicable following such filing. The French language version of any such marketing materials (or any template version thereof) shall be filed on SEDAR prior to or concurrently with the filing of the Corporation Final Prospectus as contemplated in this Underwriting Agreement and the Selling Shareholders, acting reasonably, provided that the approval a copy of the Corporation and the Selling Shareholders such French language version shall be deemed delivered to have been given in respect of the term sheet included in Annex D heretoUnderwriters as soon as practicable following such filing;
(d) The Company and each Underwriter, on a several basis, covenants and agrees that, during the distribution of the Offered Shares, it will not provide any potential investor with any materials or information in relation to the distribution of the Offered Shares or the Company other than the Canadian Prospectuses and the U.S. Prospectuses in accordance with this Agreement, provided that: (i) any such materials that constitute marketing materials have been prepared, approved and filed in accordance with Section 5.1(c); and (ii) any such materials that constitute standard term sheets have been approved in writing by the Company and the Lead Underwriters and have been prepared and are provided in compliance with Canadian Securities Laws, in each case only in the Provinces;
(e) Notwithstanding Sections 5.1(c) and (d), following the preparation, approval and filing of a template version of marketing materials in accordance with Section 5.1(c), the Underwriters may provide a limited-use version of such template version to potential investors of Offered Shares in accordance with Canadian Securities Laws; and
(f) to use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Offered Shares as soon as possible after the Closing Time.
Section 5.2 The Underwriters may offer the Offered Shares at a price less than the Offering Price in compliance with Securities Laws and, specifically in the case of any Offered Shares offered in the Provinces and TerritoriesProvinces, the requirements of NI 44-101 and the disclosure concerning the same which is contained in the Canadian Prospectuses. Any decrease in the price at which the Offered Shares are offered will not decrease the amount of the net proceeds to the Company.
Section 5.3 For the purposes of this Article 5V, the Underwriters shall be entitled to assume that the distribution of the Offered Shares is qualified in each of the Provinces and Territories and that the Offered Shares are registered under the U.S. federal securities laws Securities Act after receipt by the Co-Lead Underwriters of notification from the CorporationCompany’s counsel that a Passport Receipt for the Canadian Final Prospectus has been issued and that the Registration Statement has been declared effective, as applicable, unless the Underwriters receive notice to the contrary from the Corporation Company or any applicable securities regulatory authority.
Section 5.4 No Underwriter will be liable to the Corporation Company under this Article 5 V with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) or the Corporation Company under this Agreement if the Underwriter first mentioned is not itself in violation.
Section 5.5 The Co-Lead Underwriters will notify the Corporation Company when, in their opinion, the Underwriters have ceased distribution of the Offered Shares and shall, as soon as practicable, provide the Corporation Company with a breakdown of the number of Offered Shares distributed in each of the Provinces and Territories where such breakdown is required for the purpose of calculating fees payable to a Securities Commission.
Section 5.6 No Underwriter will make any representations or warranties with respect to the Corporation, the Selling Shareholders Company or the Offered Shares other than as set forth in this Agreement, the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, or any Prospectus Amendment, as applicable.
Section 5.7 In performing their respective obligations under this Agreement, the Underwriters will be acting severally and not jointly and severally, and no Underwriter shall be liable for any act, omission or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter. Nothing in this Agreement is intended to create any relationship in the nature of a partnership, or joint venture among the Underwriters.
Appears in 1 contract
Distribution of Common Shares. Section 5.1 Each of the Underwriters covenants and agrees with the Corporation Company and the Selling ShareholdersShareholder:
(a) to offer the Offered Shares for sale to the public in Canada and the United States, directly (including through any affiliate of an Underwriter) and through other investment dealers and brokers (the Underwriters, together with such other investment dealers and brokers, referred to herein in this Agreement as the “Selling Firms”), only in compliance with all applicable Securities Laws, upon the terms and conditions set forth in the Base Prospectus, the Canadian Final Prospectus Supplements, the U.S. Prospectus Supplements or the U.S. Final ProspectusRegistration Statement, as applicable, any Prospectus Amendment and this Agreement;
(b) to offer the Offered Shares for sale to the public outside of Canada and the United States, directly (including through any affiliate of an Underwriter) and through other Selling Firms, only in compliance with all applicable laws and regulations, provided such offers do not require the Corporation Company or the Selling Shareholder to comply with the registration, prospectus, continuous disclosure filing or other similar requirements under the laws of such jurisdictions, in each jurisdiction into and from which they may offer or sell the Offered Shares, upon the terms and conditions set forth in the Base Prospectus, the Canadian Final Prospectus Supplements, the U.S. Prospectus Supplements or the U.S. Final ProspectusRegistration Statement, as applicable, any Prospectus Amendment and this Agreement;
(c) they will not make use of any “marketing materials” or “standard term sheet” (within During the meaning of applicable Canadian Securities Laws) in respect distribution of the Corporation and Offered Shares
(i) the Offering without Company shall prepare, in consultation with the approval of the Corporation Co-Lead Underwriters and the Selling ShareholdersShareholder, any marketing materials (including any template version thereof) to be provided to potential investors of Offered Shares, and approve in writing any such marketing materials (including any template version thereof), such marketing materials to comply with Securities Laws and to be acceptable in form and substance to the Underwriters, the Selling Shareholder and their respective counsel, acting reasonably;
(ii) the Co-Lead Underwriters shall, provided that the approval on behalf of the Corporation Underwriters, approve in writing any such marketing materials, as contemplated by and prepared in compliance with Securities Laws, prior to any marketing materials being provided to potential investors of Offered Shares and/or filed with the Securities Commissions; and
(iii) the Company shall: (i) (A) file any such marketing materials (or any template version thereof) with the Securities Commissions as soon as reasonably practicable after such marketing materials are so approved in writing by the Company, the Co-Lead Underwriters, on behalf of the Underwriters, and the Selling Shareholders Shareholder, and in any event on or before the day the marketing materials are first provided to any potential investor in the Offered Shares; and (B) file any such marketing materials with the SEC pursuant to Rule 433 under the U.S. Securities Act on or before the day such marketing materials are first provided to any potential investor in the Offered Shares, unless an exemption is available from such filing requirement and the conditions to the availability of such exemption are satisfied; and (ii) remove or redact any comparables from any template version so filed, in compliance with NI 44-102, prior to filing such template version with the Securities Commissions (but, for the avoidance of doubt, such comparables shall not be removed from the version filed with the SEC pursuant to Rule 433 under the U.S. Securities Act); provided that a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be deemed delivered to have been given the Securities Commissions in respect of compliance with NI 44-102 by the term sheet included in Annex D heretoCompany, and a copy thereof provided to the Underwriters as soon as practicable following such filing;
(d) The Company and each Underwriter, on a several basis, covenants and agrees that, during the distribution of the Offered Shares, it will not provide any potential investor with any materials or information in relation to the distribution of the Offered Shares or the Company other than the Offering Documents in accordance with this Agreement, provided that: (i) any such materials that constitute marketing materials have been prepared, approved and filed in accordance with Section 5.1(c) and (ii) any such materials that constitute standard term sheets have been approved in writing by the Company, the Co-Lead Underwriters and the Selling Shareholder and have been prepared and are provided in compliance with Canadian Securities Laws, in each case only in the Provinces;
(e) Notwithstanding Section 5.1(c) and Section 5.1(d), following the preparation, approval and filing of a template version of marketing materials in accordance with Section 5.1(c), the Underwriters may provide a limited-use version of such template version to potential investors of Offered Shares in accordance with Canadian Securities Laws; and
(f) to use all commercially reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Offered Shares as soon as possible after the Closing Time.
Section 5.2 The Underwriters may offer the Offered Shares at a price less than the Offering Price in compliance with Securities Laws and, specifically in the case of any Offered Shares offered in the Provinces and TerritoriesProvinces, the requirements of NI 44-101 and the disclosure concerning the same which is contained in the Canadian ProspectusesProspectus Supplements. Any decrease in the price at which the Offered Shares are offered will not decrease the amount of the net proceeds to the Selling Shareholder.
Section 5.3 For the purposes of this Article 5V, the Underwriters shall be entitled to assume that the distribution of the Offered Shares is qualified in each of the Provinces and Territories and that the Offered Shares are registered under the U.S. federal securities laws after receipt by the Co-Lead Underwriters of notification from the Corporation’s counsel that a Passport Receipt for the Canadian Final Prospectus has been issued and that the Registration Statement has been declared effective, as applicableSecurities Act, unless the Underwriters receive notice in writing to the contrary from the Corporation Company or any applicable securities regulatory authority.
Section 5.4 No Underwriter will be liable to the Corporation Company under this Article 5 V with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) or the Corporation Company under this Agreement if the Underwriter first mentioned is not itself in violationdefault.
Section 5.5 The Co-Lead Underwriters will notify the Corporation Company when, in their opinion, the Underwriters have ceased distribution of the Offered Shares and shall, as soon as practicable, provide the Corporation Company with a breakdown of the number of Offered Shares distributed in each of the Provinces and Territories where such breakdown is required for the purpose of calculating fees payable to a Securities Commission.
Section 5.6 No Underwriter will make any representations or warranties with respect to the CorporationCompany, the Selling Shareholders Shareholder or the Offered Shares other than as set forth in this Agreement, the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, or any Prospectus Amendment, as applicable.
Section 5.7 In performing their respective obligations under this Agreement, the Underwriters will be acting severally and not jointly and severally, and no Underwriter shall be liable for any act, omission or conduct by any other Underwriter or any Selling Firm appointed by any other Underwriter. Nothing in this Agreement is intended to create any relationship in the nature of a partnership, or joint venture among the Underwriters.
Appears in 1 contract
Distribution of Common Shares. Section 5.1 Each of the Underwriters covenants and agrees with the Corporation and the Selling ShareholdersCorporation:
(a) to offer the Offered Shares for sale to the public in Canada and the United States, directly and through other investment dealers and brokers (the Underwriters, together with such other investment dealers and brokers, referred to herein as the “Selling Firms”), only in compliance with all applicable Securities Laws, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement;
(b) to offer the Offered Shares for sale to the public outside of Canada and the United States, directly and through other Selling Firms, only in compliance with all applicable laws and regulations, provided such offers do not require the Corporation to comply with the registration, prospectus, continuous disclosure filing or other similar requirements under the laws of such jurisdictions, regulations in each jurisdiction into and from which they may offer or sell the Offered Shares, upon the terms and conditions set forth in the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, any Prospectus Amendment and this Agreement;; and
(c) they will not make use of any “marketing materials” or “standard term sheet” (within the meaning of applicable Canadian Securities Laws) in respect of the Corporation and the Offering without the approval of the Corporation and the Selling Shareholders, acting reasonably, provided that the approval of the Corporation and the Selling Shareholders shall be deemed to have been given in respect of the term sheet included in Annex D hereto;
(d) to use all reasonable efforts to complete and to cause the Selling Firms to complete the distribution of the Offered Shares as soon as possible after the Closing Time.
Section 5.2 The Underwriters may offer the Offered Shares at a price less than the Offering Price in compliance with Securities Laws and, specifically in the case of any Offered Shares offered in the Provinces and Territories, the requirements of NI 44-101 and the disclosure concerning the same which is contained in the Canadian Prospectuses.
Section 5.3 For the purposes of this Article 5, the Underwriters shall be entitled to assume that the distribution of the Offered Shares is qualified in each of the Provinces and Territories and that the Offered Shares are registered under U.S. federal securities laws after receipt by the Co-Lead Underwriters of notification from the Corporation’s counsel that a Passport Receipt for the Canadian Final Prospectus has been issued and that the Registration Statement has been declared effective, as applicable, unless the Underwriters receive notice to the contrary from the Corporation or any applicable securities regulatory authority.
Section 5.4 No Underwriter will be liable to the Corporation under this Article 5 with respect to a default by another Selling Firm (that is not an affiliate of such Underwriter) or the Corporation under this Agreement if the Underwriter first mentioned is not itself in violation.
Section 5.5 The Co-Lead Underwriters will notify the Corporation when, in their opinion, the Underwriters have ceased distribution of the Offered Shares and shall, as soon as practicable, provide the Corporation with a breakdown of the number of Offered Shares distributed in each of the Provinces and Territories where such breakdown is required for the purpose of calculating fees payable to a Securities Commission.
Section 5.6 No Underwriter will make any representations or warranties with respect to the Corporation, the Selling Shareholders or the Offered Shares other than as set forth in this Agreement, the Canadian Final Prospectus or the U.S. Final Prospectus, as applicable, or any Prospectus Amendment, as applicable.
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Samples: Underwriting Agreement (Canadian Pacific Railway LTD/Cn)