Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date. 2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below: (a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably; (b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter; (c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”); (d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; and
Appears in 2 contracts
Samples: Underwriting Agreement (Great Basin Gold LTD), Underwriting Agreement (Great Basin Gold LTD)
Nature of the Transaction. 2.1 (a) Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units (excluding the Additional Securities) of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree severally, in the respective percentages set forth in Section 17 of this Agreement, and not jointly, to purchase at the Closing Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants Securities in whole or in part and at any time and from time to time up to 30 days after the Closing Date, the Corporation shall hereby agrees to sell to the Underwriters and the Underwriters shall agree severally, in the respective percentages set forth in Section 17 of this Agreement, and not jointly, to purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing Securities on the Over-Allotment Option Closing DateDate (hereinafter defined).
2.2 (b) This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document Receipt for the Canadian Final Prospectus from the Commissions securities regulatory authorities in each of the Qualifying Jurisdictions, Provinces pursuant to National Instrument 44-101 – Short Form Prospectus Distributions (“NI 44-101”) qualifying the distribution Distribution by the Corporation of the Units and any Additional Securities to purchasers resident in such provinces dated effective on or before September 11, 2008, or such later date as the Lead Underwriter may agree, acting reasonably. A Passport Receipt for the Canadian Preliminary Prospectus from the securities regulatory authorities in each of the Qualifying Provinces was obtained pursuant to NI 44-101 on September 2, 2008.
(c) The Corporation has also prepared and filed with the SEC pursuant to the Canada/U.S. Multi-Jurisdictional Disclosure System adopted by the Qualifying Authorities and the SEC, a registration statement on Form F-10 (Registration No. 333-153292) covering the registration of the Units and any Additional Securities under the U.S. Securities Act, including the U.S. Preliminary Prospectus. The Corporation has also prepared and filed with the SEC an Appointment of Agent for Service of Process and Undertaking on Form F-X at the time of the initial filing of the Registration Statement (the “Form F-X”).
(d) The Corporation agrees to pay to the Underwriters upon completion of the Offering the Underwriting Fee. The Underwriting Fee is payable at the Closing Time in consideration of the services to be rendered by the Underwriters in connection with the Offering, which services shall include:
(i) acting as Underwriters of the Corporation to purchase the Units;
(ii) assisting in the preparation of the Preliminary Prospectuses and the Final Prospectuses, together with any Supplementary Material required to be filed under the legislation of the Qualifying Provinces and under the U.S. Securities Laws, and performing administrative work in connection with these matters;
(iii) assisting in the preparation of the Registration Statement as required to be filed under the U.S. Securities Act and performing administrative work in connection with these matters;
(iv) advising the Corporation with respect to the Offering;
(v) distributing the Units to the public both directly and through other registered dealers and brokers; and
(vi) all other services arising out of the agreement resulting from the Corporation’s acceptance of this offer.
(e) The Common Shares and Warrants comprising the Units and any Additional Securities to be issued and sold by the Corporation hereunder shall be duly and validly created and issued by the Corporation and, when issued and sold by the Corporation, such Common Shares and Warrants shall have the rights, privileges, restrictions and conditions that conform in all material respects to the rights, privileges, restrictions and conditions set forth in the Preliminary Prospectuses, Final Prospectuses, and Registration Statement, subject to such modifications or changes (if any) prior to the Closing Date as may be agreed to in writing by the Corporation and the Underwriters. In addition, such Common Shares and Warrants shall be issued in compliance with all provincial, federal and state securities laws, including, without limitation, Canadian Securities Laws and U.S. Securities Laws.
(f) The terms and conditions, and the material attributes and characteristics, of the Warrants shall be satisfactory to the Corporation and the Underwriters and consistent with the provisions of this Agreement. Such terms and conditions, and material attributes and characteristics, will be contained in the Warrant Indenture which will contain, among other things, anti-dilution provisions and provisions for the appropriate adjustment in the class and number of Warrant Shares or other securities to be received on the exercise of Warrants upon the occurrence of certain events, including any subdivision, consolidation or reclassification of the Common Shares or any payment of dividends consisting of securities of the Corporation or the amalgamation of, or other reorganization involving, the Corporation. Subject to adjustment in accordance with the provisions of the Warrant Indenture, each whole Warrant shall entitle the holder thereof to acquire one Warrant Share at a price of U.S.$2.20 for a period of 36 months after the Closing Date.
(g) The Distribution of the Units, the Over-Allotment Option and any Additional Common Shares Securities shall be qualified by the Canadian Preliminary Prospectus and Canadian Final Prospectus under Canadian Securities Laws in the Qualifying Provinces and the Units, Over-Allotment Option and any Additional Securities shall be registered under the U.S. Securities Act by the Registration Statement. Units and/or Additional Warrants to purchasers resident Securities may also be distributed in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date other jurisdictions as the Lead Corporation and the Underwriters may agree, acting reasonably. The obligation provided the Distribution of the Underwriters to purchase any Offered Units and/or Additional Securities shall, in addition to being subject to the such other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and jurisdictions are completed in accordance with the provisions applicable laws of such other jurisdictions in such a manner so as not to require the U.S. Corporation to file a prospectus or similar disclosure document in such jurisdiction.
(h) The Common Shares and Warrants comprising the Units and any Additional Securities Actshall be listed at the Closing Time on the TSX and the AMEX, and each Exchange shall have approved, by the Closing Time, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page additional listing application in respect of the Preliminary Common Shares, Warrants and Warrant Prospectus Shares.
(i) The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents to assist in the Final Warrant Prospectus; andOffering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Underwriters. The Underwriters shall require and shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the Underwriters.
(j) Each Underwriter covenants, represents and warrants to the Corporation that it will comply with the rules and policies of each of the Exchanges and with the Canadian Securities Laws of each Qualifying Province, the U.S. Securities Laws and the applicable laws of each other jurisdiction in which it acts as an underwriter for the Corporation or offers or sells the Units or Additional Securities in connection with the Offering.
Appears in 2 contracts
Samples: Underwriting Agreement (Banro Corp), Underwriting Agreement (Banro Corp)
Nature of the Transaction. 2.1 Subject to the terms Each Purchaser shall be a resident in an Offering Jurisdiction and conditions of this Agreement, the Underwriters offer to shall purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right Offered Securities pursuant to the Over-Allotment Option Prospectus. The Corporation hereby agrees to purchase Additional Common Shares and/or Additional Warrants comply with all Applicable Securities Laws on a timely basis in whole or connection with the Distribution of the Offered Securities and the Corporation shall execute and file with the Securities Regulators all forms, notices and certificates relating to the Offering required to be filed pursuant to Applicable Securities Laws in part the Offering Jurisdictions within the time required by Applicable Securities Laws in the Offering Jurisdictions. The Underwriter agrees to assist the Corporation in all commercially reasonable respects to secure compliance with all regulatory requirements in connection with the Offering, and at any time up to 30 days after sell the Closing DateOffered Securities only in the Offering Jurisdictions. During the Distribution of the Offered Securities, the Corporation shall sell to the Underwriters and the Underwriters Underwriter shall purchase approve in writing (prior to such time that number of Additional Common Shares and/or Additional Warrants marketing materials are provided to potential investors) any marketing materials reasonably requested to be provided by the Underwriters pursuant Underwriter to any potential investor, such marketing materials to comply with Applicable Securities Laws of the notice delivered Canadian Offering Jurisdictions and the United States. The Underwriter shall provide a copy of any marketing materials used in connection with the Offering to the Corporation in accordance with this Section 3.11. The Corporation shall file a template version and any revised template version of such marketing materials with the Canadian Securities Regulators and if required by U.S. Securities Laws, at with the Time of Closing on the Over-Allotment Closing Date.
2.2 This offer is conditional uponSEC, among other things, the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions as soon as reasonably practicable after such marketing materials are so approved in the Qualifying Jurisdictions, qualifying the distribution writing by the Corporation of and the UnitsUnderwriter, and in any event on or before the day the marketing materials are first provided to any potential investor, and such filing shall constitute the Underwriter’s authority to use such marketing materials in connection with the Offering. Any comparables shall be redacted from the template version in accordance with NI 44-101 prior to filing such template version with the Canadian Securities Regulators and a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be delivered to the Canadian Securities Regulators and if required by U.S. Securities Laws, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4SEC, 2009, or such later date as by the Lead Underwriters may agree, acting reasonablyCorporation. The obligation of Corporation and the Underwriters to purchase any Offered Securities shallUnderwriter, in addition to being subject to the other terms on a several basis, covenant and conditions described herein, be conditional on the following steps having been taken within the time frames described belowagree:
(a) The not to provide any potential investor with any marketing materials unless a template version of such marketing materials has been filed by the Corporation shall file with the Canadian Securities Regulators and, if required by U.S. Securities Laws, the SEC, in form and substance satisfactory on or before the day such marketing materials are first provided to the Underwriters, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablypotential investor;
(b) The Corporation shall, on not to provide any potential investor with any materials or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating information in relation to the Warrant Shares Distribution of the Offered Securities or the Corporation other than: (i) such marketing materials that have been approved and use its best efforts to obtain filed in accordance with this Section 1; (ii) the issuance Prospectus and any Prospectus Amendments; and (iii) any standard term sheets approved in writing by the Reviewing Authority of a receipt for Corporation and the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;Underwriter; and
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in that any event no later than one Business Day thereafter, marketing materials approved and filed in accordance with this Section 1 and any standard term sheets approved in writing by the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 Corporation and the applicable rules and regulations of Underwriters shall only be provided to potential investors in the SEC) along with Offering Jurisdictions where the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing provision of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on marketing materials or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andstandard term sheets does not contravene Applicable Securities Laws.
Appears in 2 contracts
Samples: Underwriting Agreement (Titan Medical Inc), Underwriting Agreement (Titan Medical Inc)
Nature of the Transaction. 2.1 Subject The sale of the Special Warrants to purchasers (the "Purchasers") is to be effected in a manner exempt from any prospectus filing or delivery requirements of the Applicable Securities Laws without the necessity of obtaining any order or ruling of any of the Securities Commissions. Notwithstanding that offers and sales of Special Warrants may be made outside of Canada, the offers or sales must also be in compliance with the law of Alberta. Each trade of the Special Warrants to which the law of Alberta applies will be made by the Company under the prospectus filing exemptions in sections 107(1)(d) of the Securities Act (Alberta) (the "Alberta Act"). If the Agent chooses to offer the Special Warrants outside of Canada, which it is not required to do, the Agent will offer the Special Warrants outside of Canada only in compliance with the applicable securities laws, regulations, rules and policies of the jurisdictions (the "Offering Jurisdictions") in which they are offered. The Agent will, at its own expense, take all such steps and make all required filings which must be made in order to effect compliance with such laws, regulations, rules and policies. The Agent will notify the Company with respect to the terms identity and conditions jurisdiction of this Agreement, residence of each Purchaser as soon as practicable with a view to affording sufficient time to allow the Underwriters offer Company to purchase secure compliance with the Units Applicable Securities Laws and the applicable law and policy in the Offering Jurisdictions in connection with the sale of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell Special Warrants to the Underwriters, and Purchasers under the Underwriters agree exemptions referred to purchase at above (collectively the Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date"Exemptions").
2.2 This offer is conditional uponThe Company will, among other thingsat its own expense, comply with the Corporation Applicable Securities Laws in connection with the sale of the Special Warrants to the Purchasers, including the filing of required reports and the payment of any applicable fees relating thereto.
2.3 The Company will, at its own expense, comply with all Applicable Securities Laws in connection with obtaining a Passport Decision Document the receipt for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying to qualify the distribution by the Corporation of the UnitsUnderlying Securities and Option Warrants including the filing of required reports and the payment of any applicable fees relating thereto.
2.4 The Agent will conduct its activities in connection with the distribution of the Special Warrants in compliance with all Applicable Securities Laws and, without limiting the foregoing, the Over-Allotment Option Agent represents, warrants and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4agrees, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described belowthat:
(a) The Corporation shall file all solicitation, offering and other selling efforts carried out by it in connection with the SEC, in form distribution of the Special Warrants have been and substance satisfactory to the Underwriters, acting reasonablywill be made, and in accordance with the provisions all purchases of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafterSpecial Warrants will be made, in accordance with the provisions of the U.S. Securities ActExemptions; and
(b) it is a member, in good standing, of The Alberta Stock Exchange (the "Exchange").
2.5 The Agent will obtain from each Purchaser a shelf registration statement properly completed and duly executed subscription agreement (including documents incorporated a "Subscription Agreement"), in the form provided by reference thereinthe Company, as it has been and may be further amended from time a properly completed and duly executed private placement questionnaire and undertaking (a "Questionnaire and Undertaking"), in the form attached to timethe Subscription Agreement, and for those Purchasers who are individuals in circumstances where the “Warrant Registration Statement”B.C. Act applies a Form 20A(IP) on Form F-10 providing for in the registration form attached to the Subscription Agreement.
2.6 The Agent will not offer or sell the Special Warrants or the Underlying Securities in the United States and makes the representations, warranties and covenants set forth in Part II of the Warrant Shares under the U.S. Securities ActSchedule "A", which includes the Preliminary Warrant Prospectus (with such deletions therefrom are incorporated into and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations form part of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andthis agreement.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to The Corporation appoints the terms and conditions of this Agreement, the Underwriters offer to purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the UnderwritersAgents as its exclusive agents, and the Underwriters Agents accept the appointment and agree to purchase act as the exclusive agents of the Corporation to offer the Offered Units for sale under the Prospectus at the Time of Closing Offering Price on a commercially reasonable efforts basis. Nothing in this Agreement will create any obligation on the Closing Date, all, but not less than all, of the Agents to purchase any Offered Units. In the event the Underwriters Agents exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants Units in whole or in part and at any from time up to 30 days after the Closing Datetime, the Corporation shall agrees to sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants Units requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing DateOption Time of Closing.
2.2 This offer The rights and obligations of the Agents under this Agreement, including but not limited to the entitlement to the Agents' Commission, will be several (as distinguished from joint or joint and several) rights and obligations for each Agent as per the percentage of allocation of the Agents' Commissions as set forth in section 7.1 hereof.
(A) The Corporation will prepare and file as soon as reasonably possible and, in any event, not later than 7:00 p.m. (Vancouver time) on November 25, 2015 (or such later date and time as may be agreed to in writing by the Agents), the Prospectus Supplement and all such other documents as are required under Applicable Securities Laws with the Commissions and otherwise fulfill all legal requirements to enable the Offered Units and the Additional Units to be offered and sold to the public in each of the Qualifying Jurisdictions through the Agents or any other registrant who is conditional uponregistered in the applicable Qualifying Jurisdiction and to qualify the distribution of the Agents' Warrants.
(B) The Corporation shall deliver to the Agents and any U.S. Selling Group Member, as soon as practicable after the Prospectus Supplement and any Supplementary Material are prepared, the U.S. private placement memorandum incorporating, among other things, the Prospectus and any Supplementary Material, as the case may be, prepared for use in connection with the offer and sale of the Offered Securities in the United States (the "U.S. Private Placement Memorandum") and, forthwith after preparation, any amendment to the U.S. Private Placement Memorandum.
2.4 Until the end of the distribution period, the Corporation obtaining a Passport Decision Document shall promptly take or cause to be taken all additional steps and proceedings that from time to time may be required under the Applicable Securities Laws to continue to qualify the Offered Units for distribution in the Final Prospectus from Qualifying Jurisdictions or, in the Commissions event that the Offered Units have, for any reason, ceased to so qualify, to again qualify the Offered Units for distribution in the Qualifying Jurisdictions.
2.5 Until the Closing or termination of this Agreement:
(a) the Corporation and the Agents shall approve in writing, qualifying prior to the distribution time Marketing Materials are provided to potential investors, a template version of any Marketing Materials reasonably requested to be provided by the Agents to any such potential investor, such Marketing Materials to comply with Applicable Securities Laws. The Corporation shall file a template version of such Marketing Materials with the Commissions as soon as reasonably practicable after such Marketing Materials are so approved in writing by the Corporation and the Agents, and in any event on or before the day the Marketing Materials are first provided to any potential investor of Offered Units, and such filing shall constitute the Agents' authority to use such Marketing Materials in connection with the Offering. Any comparables shall be redacted from the template version in accordance with NI 44-101 prior to filing such template version with the Commissions and a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be delivered to the Commissions by the Corporation. The Corporation shall prepare and file with the Commissions a revised template version of any Marketing Materials provided to potential investors of Offered Units where required under Applicable Securities Laws;
(b) the Corporation and the Agents, on a several basis (and not joint, nor joint and several), covenant and agree:
(i) not to provide any potential investor of Offered Units with any Marketing Materials unless a template version of such Marketing Materials has been filed by the Corporation with the Commissions on or before the day such Marketing Materials are first provided to any potential investor of Offered Units; and
(ii) not to provide any potential investor with any materials or information in relation to the distribution of the UnitsOffered Units or the Corporation other than: (a) such Marketing Materials that have been approved and filed in accordance with this section 2.5; (b) the Prospectus and the Prospectus Supplement; and (c) any Standard Term Sheets approved in writing by the Corporation and the Agents.
2.6 The Corporation agrees to pay to, or in the manner directed by, the Agents on the Closing Date, the Over-Allotment Option Closing Date or the Private Placement Closing Date, if applicable, the aggregate Agents' Fee payable on the Offered Units, the Additional Units and/or the PP Units, in accordance with Article 7 hereof. The Agents' Fee is payable at the Time of Closing, the Over-Allotment Option Time of Closing or the Private Placement Time of Closing, as the case may be, in consideration of the services to be rendered by the Agents and any Additional Common Shares and/or Additional Warrants to purchasers resident U.S. Selling Group Member in each Qualifying Jurisdiction dated effective March 4connection with the Offering, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described belowwhich services shall include:
(a) The acting as agents or selling group members of the Corporation shall file with the SEC, in form and substance satisfactory respect to the Underwriters, acting reasonably, offer and in accordance with the provisions sale of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyOffered Units;
(b) The Corporation shallassisting in the preparation of the U.S. Private Placement Memorandum and the Prospectus Supplement together with any documents supplemental thereto or any amending or other supplemental documents or any similar document (collectively, on or before March 5, 2009, file the "Supplementary Material") required to be filed under the legislation of the Qualifying Jurisdictions and performing administrative work in connection with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafterthese matters;
(c) distributing the Offered Units both directly and through other registered dealers and brokers; and
(d) all other services arising out of this Agreement.
2.7 The Corporation shall file with the SEC as soon as possible following the filing distribution of the Preliminary Warrant Prospectus with Offered Units and the Reviewing Authority but in any event no later than one Business Day thereafterAgents' Securities, in accordance with the provisions grant of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been Over- Allotment Option and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration distribution of the Additional Securities shall be qualified by the Prospectus under Applicable Securities Laws in the Qualifying Jurisdictions and in such other jurisdictions (excluding the United States) as the Corporation and the Agents may agree.
(A) The Agents acknowledge that the Securities, including the Agents' Securities and any PP Units, PP Shares, PP Warrants and PP Warrant Shares Shares, have not been, and will not be, registered under the U.S. Securities ActAct or the securities laws of any state of the United States, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules Agents' Warrants and regulations Agents' Unit Warrants may not be exercised in the United States or by, or on behalf of, a U.S. Person or person in the United States unless an exemption from registration is available. The Agents represent and warrant that, other than any Agents' Warrants directed by the Lead Agent to be issued in the name of the SECU.S. Selling Group Member, they are acquiring the Agents' Warrants for their own account for investment purposes and not for the account or benefit of, or transfer to, any other person.
(B) along Each of the Agents represents and warrants that (i) it is not a U.S. Person, (ii) the Agents' Warrants were not offered to the Agents in the United States, and (iii) the Agents did not execute or deliver this Agreement in the United States.
2.9 Notwithstanding section 2.1 hereof, the parties to this Agreement acknowledge and agree that the Lead Agent may appoint a U.S. broker-dealer (a "U.S. Selling Group Member") to act as its exclusive sub-agent to conduct offers and sales of the Offered Securities in the United States or to, or for the account or benefit of, U.S. Persons, and that the Agents may determine the remuneration payable to such U.S. Selling Group Member. The Lead Agent shall use its commercially reasonable efforts to ensure that such U.S. Selling Group Member, if any, complies with the filing with the SEC terms of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority this Agreement as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory applicable to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andAgents.
Appears in 1 contract
Samples: Agency Agreement
Nature of the Transaction. 2.1 (a) Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units Initial Shares of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree severally, in the respective percentages set forth in Section 17 of this Agreement, and not jointly, to purchase at the Closing Time of Closing on the Closing Date, all, but not less than all, of the UnitsInitial Shares. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common the Over-Allotment Shares and/or Additional Warrants in whole or in part and at any time and from time to time up to 30 days after the Closing Date, the Corporation shall hereby agrees to sell to the Underwriters and the Underwriters shall agree severally, in the respective percentages set forth in Section 17 of this Agreement, and not jointly, to purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Shares on the Option Closing Date.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file has prepared and filed the Canadian Shelf Prospectus with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”)Qualifying Authorities, under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt providing for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;offer and sale, from time to time, of up to U.S.$380,000,000 of, among other securities of the Corporation, Common Shares. The Principal Regulator has issued the Passport Receipt on behalf of the Qualifying Authorities.
(c) The Corporation shall file has also prepared and filed, or will file, with the SEC as soon as possible following pursuant to the filing of Canada/U.S. Multi-Jurisdictional Disclosure System adopted by the Preliminary Warrant Prospectus with Qualifying Authorities and the Reviewing Authority but in any event no later than one Business Day thereafterSEC, in accordance with the provisions of Registration Statement and the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it Shelf Prospectus. The Corporation has been also prepared and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing filed with the SEC an Appointment of an appointment Agent for Service of an agent for service of process upon the Corporation Process and Undertaking on Form F-X in conjunction with at the time of the initial filing of such registration statement the Registration Statement (the “Warrant Form F-X”);. No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC, nor has any proceeding with respect thereto been instituted. The Corporation has fulfilled and complied with, to the reasonable satisfaction of the Underwriters, the U.S. Securities Laws required to be fulfilled or complied with by the Corporation in order to enable the Offered Shares to be distributed to the public in the United States.
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory agrees to pay to GMP, on behalf of the Underwriters, upon completion of the Offering the Underwriting Fee. The Underwriting Fee is payable at the Closing Time in consideration of the services to be rendered by the Underwriters in connection with the Offering, which services shall include:
(i) acting reasonablyas Underwriters of the Corporation to purchase the Initial Shares;
(ii) assisting in the preparation of the Prospectus Supplements together with any Supplementary Material required to be filed under the legislation of the Qualifying Provinces and under the U.S. Securities Laws, and performing administrative work in accordance connection with these matters;
(iii) assisting in the procedures set out preparation of the Registration Statement as required to be filed under the U.S. Securities Act and performing administrative work in NI 44-102 relating connection with these matters;
(iv) advising the Corporation with respect to the Warrant Offering;
(v) distributing the Offered Shares to the public both directly and through other registered dealers and brokers; and
(vi) all other services arising out of the “Final Warrant Prospectus”) and shall obtain a receipt agreement resulting from the Reviewing Authority Corporation’s acceptance of this offer.
(e) The Offered Shares to be issued and sold by the Corporation hereunder shall be duly and validly created and issued by the Corporation and, when issued and sold by the Corporation, such Common Shares shall have the rights, privileges, restrictions and conditions that conform in respect thereof on all material respects to the rights, privileges, restrictions and conditions set forth in the Registration Statement, the Shelf Prospectuses, the Prospectus Supplements and any Supplementary Materials, subject to such modifications or before the second Business Day changes (if any) prior to the Closing DateDate as may be agreed to in writing by the Corporation and the Underwriters. In addition, such Common Shares shall be issued in compliance with all provincial, federal and state securities laws, including, without limitation, Canadian Securities Laws and U.S. Securities Laws.
(f) The Distribution of the Offered Shares shall be qualified by the Canadian Shelf Prospectuses and under Canadian Securities Laws in the Qualifying Provinces and shall be registered under the U.S. Securities Act by the Registration Statement. The Corporation shall file with the Reviewing Authority within one Business Day Distribution of the issuance Offered Shares may also take place in such countries of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated Europe as determined appropriate by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be in accordance with applicable laws but provided that no prospectus, registration statement or similar document is required to execute a certificate page be filed in any such country.
(g) The Initial Shares shall be listed at the Closing Time on the TSX and the Amex, and the TSX and the Amex shall have approved, by the Closing Time, an additional listing application in respect of the Preliminary Warrant Prospectus Over-Allotment Shares, if the Underwriters have provided notice of the exercise of the Over-Allotment Option in accordance with Section 3(a) prior to Closing.
(h) The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents for the Final Warrant Prospectus; andpurpose of assisting in connection with the distribution of, and arranging purchasers for, the Offered Shares, and that the Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Underwriters. The Underwriters shall require and shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the Underwriters.
(i) Each Underwriter covenants, represents and warrants to the Corporation that it will comply with the rules and policies of each of the Exchanges and with the Canadian Securities Laws of each Qualifying Province, the U.S. Securities Laws and the applicable laws of each other jurisdiction in which it acts as an underwriter for the Corporation or offers or sells the Offered Shares in connection with the Offering.
Appears in 1 contract
Samples: Underwriting Agreement (Banro Corp)
Nature of the Transaction. 2.1 Subject The Company appoints the Agent as its exclusive agent for the Offering, and the Agent hereby agrees to act as the exclusive agent of the Company to use its reasonable best efforts to offer and sell the Shares in the Qualifying Jurisdictions to potential Purchasers resident in the Qualifying Jurisdictions.
2.2 If in the opinion of the Agent it is necessary, the Agent will form, manage and participate in a group of registered securities dealers (the "Selling Group") to offer and sell the Shares as provided for hereunder. In the event that a Selling Group is formed, the Agent will manage the Selling Group to the extent customary in the securities industry in Canada and require each member of the Selling Group to conduct the Offering on the terms and conditions of set forth in this Agreement. Each member of the Selling Group shall be appropriately registered under the Applicable Securities Laws of the Qualifying Jurisdictions in which such member of the Selling Group offers and sells the Shares so as to permit it to lawfully offer and sell the Shares in such jurisdiction.
2.3 The Company covenants and agrees with the Agent that it will:
(a) prepare and file with the Commissions under the Applicable Securities Laws of the Qualifying Jurisdictions, a Preliminary Prospectus, together with the required supporting documents, to permit the Agent to solicit expressions of interest for the Offering;
(b) use its reasonable best efforts to address, as expeditiously as possible, the Underwriters offer to purchase the Units comments made in respect of the CorporationPreliminary Prospectus by the Commissions;
(c) prepare and file, as soon as practicable after all of the comments referred to in subparagraph (b) above have been addressed, under the Applicable Securities Laws of the Qualifying Jurisdictions, the Final Prospectus, together with the required supporting documents, and use its reasonable best efforts to obtain the Final Receipt on or before June 15, 1999 or such other date as agreed to by acceptance the Company and the Agents, .and take all other steps and proceedings that may be necessary in order to qualify, under the Applicable Securities Laws of this Agreement the Corporation agrees to sell Qualifying Jurisdictions, the distribution of the Qualified Securities;
(d) prior to the UnderwritersEffective Date, apply to the Exchange for a conditional listing of its common shares, and prepare and file with the Underwriters agree Exchange, using its reasonable best efforts to purchase at do so, a Preliminary Listing Submission, together with the Time of Closing on required supporting documents, to obtain comfort that the Closing DateConditional Listing will be secured; and
(e) use its reasonable best efforts to address, allas expeditiously as possible, but not less than all, the comments made in respect of the Units. In Preliminary Listing Submission by the event Exchange.
2.4 Following the Underwriters exercise their right pursuant to Effective Date and after consulting with the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole Exchange, the Company and the Agent will set the Offering Day.
2.5 The Offering Day will be on or in part and at any time up to 30 before the earlier of the day which is:
(a) 90 days after the Closing Effective Date, ; and
(b) 12 months after the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number date of Additional Common Shares and/or Additional Warrants requested issue by the Underwriters pursuant to Commission of the notice delivered to preliminary receipt for the Corporation Prospectus.
2.6 The Offering will be made through the facilities of an in accordance with Section 3.1the rules and policies of the Exchange.
2.7 After the Offering has been completed, at the Time Company and the Agent will file any documents required by the Exchange in order to remove the conditional listing and to list and commence trading of Closing the common shares of the Issuer on the Over-Allotment Closing DateExchange.
2.2 This offer 2.8 The Agent will advise the Company and its counsel in writing when the distribution under the Prospectus is conditional uponcomplete.
2.9 The Agent will purchase all of the Shares for which subscriptions have not been received by the Offering Day. In consideration for the Agent's guarantee to purchase unsubscribed Shares, the Company will issue the Agent's Warrant to the Agent, or to members of the Agent's selling group as directed by the Agent. The Agent's Warrant will be exercisable for a period of two years from the Listing Date at a price equal to the Offering Price during the first year and at a price equal to the Offering Price plus 15% during the second year. The form of Agent's Warrant will be provided to the Company by the Agent and the terms and conditions contained therein will include, among other things, the Corporation obtaining a Passport Decision Document provisions for the Final Prospectus from the Commissions appropriate adjustment in the Qualifying Jurisdictionsclass, qualifying the distribution by the Corporation number and price of the Unitsshares to be issued under the Agent's Warrant upon the occurrence of certain events, including any subdivision, consolidation or reclassification of the shares, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, payment of stock dividends or such later date as the Lead Underwriters may agree, acting reasonably. The obligation amalgamation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:Company.
(a) 2.10 The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and Company will use its best efforts to obtain assist the issuance by Agent in placing the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonablyShares, and in accordance this regard will provide the Agent with a "President's List" of all persons, whether brokerage firms, institutional investors or others who have expressed interest in participating in any financing to be carried out by the procedures set out in NI 44-102 relating Company, and to direct to the Warrant Shares (Agent any and all unsolicited inquiries regarding this Offering. It is agreed that the “Final Warrant Prospectus”) and shall obtain a receipt from Agent will have the Reviewing Authority in respect thereof on or before right but not the second Business Day prior obligation to place the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andPresident's List
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreementset out herein, the Underwriters offer to purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at severally and not jointly in the Time of Closing on respective percentages set out in section 7.1, and by its acceptance hereof, the Closing DateCorporation agrees to issue and sell to the Underwriters, all, but not less than all, of the UnitsOffered Shares (excluding the Additional Shares) at the Time of Closing on the Closing Date. In the event the Underwriters exercise their right pursuant to the Over-Allotment Underwriters' Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any from time up to 30 days after the Closing Datetime, the Corporation shall hereby agrees to sell to the Underwriters and the Underwriters shall agree to purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1requested, at the Underwriters' Option Time of Closing on the Over-Allotment Closing DateClosing.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document from the Principal Regulator pursuant to the Passport System dated May 3, 2011, evidencing that a receipt has been issued for the Final Preliminary Prospectus from by the Commissions in the Qualifying Jurisdictions, Jurisdictions qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Offered Shares and/or Additional Warrants to purchasers resident in each such provinces and of the Underwriters’ Warrants to the Underwriters or any sub-underwriters. The Corporation will (a) use its reasonable best efforts to promptly resolve all comments received or deficiencies raised by the Commissions with respect to the Preliminary Prospectus; and (b) use its best efforts to file the Final Prospectus and obtain a Passport Decision Document from the Principal Regulator evidencing that a receipt has been issued for the Final Prospectus by the Commissions in the Qualifying Jurisdiction dated effective March 4Jurisdictions qualifying the distribution by the Corporation of the Offered Shares to purchasers resident in such provinces as soon as possible after such comments have been satisfied and deficiencies resolved, 2009and in any event no later than May 10, 2011, or such later date as the Lead Underwriters Canaccord Genuity may agree, acting reasonably.
2.3 The Corporation agrees to pay to the Underwriters on the Closing Date and the Underwriters' Option Closing Date, if applicable, the Underwriters’ Fee payable on the Offered Shares or Additional Shares sold on such date. The obligation Underwriters’ Fee is payable at the Time of Closing and Underwriters' Option Time of Closing, as the case may be, in consideration of the services to be rendered by the Underwriters to purchase any Offered Securities shallin connection with the Offering, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described belowwhich services shall include:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions as underwriters of the U.S. Securities Act, an amendment Corporation to purchase the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyOffered Shares;
(b) The Corporation shall, on or before March 5, 2009, file with assisting in the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority preparation of a receipt for the Preliminary Warrant Prospectus as soon as possible but and the Final Prospectus together with any documents supplemental thereto or any amending or supplementary prospectus or other supplemental documents or any similar document (collectively, the "Supplementary Material") required to be filed under the legislation of the Qualifying Jurisdictions and performing administrative work in any event no later than one Business Day thereafterconnection with these matters;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon advising the Corporation on Form F-X in conjunction with respect to the filing of such registration statement (the “Warrant Form F-X”)Offering;
(d) distributing the Offered Shares to the public both directly and through other registered dealers and brokers; and
(e) all other services arising out of the agreement resulting from the Corporation's acceptance of this offer.
2.4 The distribution of the Offered Shares and the Underwriters’ Warrants and the grant of the Underwriters' Option shall be qualified by the Prospectuses under Applicable Securities Laws in the Qualifying Jurisdictions and in such other jurisdictions (excluding the United States) as the Corporation and the Underwriters may agree.
2.5 The Offered Shares shall be listed at Closing on the Exchange.
2.6 The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents to assist in the Offering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall file be payable by the Underwriters. The Underwriters shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the Reviewing Authority terms of this Agreement as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory applicable to the Underwriters.
2.7 Each Underwriter, acting reasonablyseverally and not jointly, nor jointly and in accordance severally, covenants, represents and warrants to the Corporation that it will comply with the procedures set out rules and policies of the Exchange and with all applicable securities legislation of each Qualifying Jurisdiction in NI 44-102 relating to which it acts as underwriter of the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority Corporation in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file connection with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andOffering.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, we understand that the Underwriters Corporation, in connection with the Offering, wishes to appoint the Agents as exclusive agents of the Corporation for the purpose of offering for sale, on a best efforts basis, the Offered Securities.
2.2 The Corporation has prepared and filed the Canadian Shelf Prospectus with the Commissions, providing for the offer and sale, from time to purchase the Units time, of up to $60 million of, among other securities of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to Offered Securities. The Principal Regulator has issued the Underwriters, and the Underwriters agree to purchase at the Time of Closing Passport Decision Document on the Closing Date, all, but not less than all, behalf of the Units. In Commissions.
2.3 The Corporation has also prepared and filed the event Canadian Preliminary Prospectus Supplement with the Underwriters exercise their right Commissions in each of the Qualifying Jurisdictions in connection with the Offering.
2.4 The Corporation has also prepared and filed with the SEC pursuant to the OverCanada/U.S. Multi-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part Jurisdictional Disclosure System adopted by the Qualifying Jurisdictions and at any time up to 30 days after the Closing DateSEC, the Registration Statement. The Corporation shall sell has also prepared and filed with the SEC the Form F-X. No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC, nor has any proceeding with respect thereto been instituted. The Corporation has fulfilled and complied with, to the Underwriters and reasonable satisfaction of the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested Agents, the U.S. Securities Laws required to be fulfilled or complied with by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at order to enable the Time of Closing on Offered Securities to be distributed to the Over-Allotment Closing Datepublic in the United States.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:
(a) 2.5 The Corporation shall file with the SECPrincipal Regulator as soon as possible and in any event no later than the business day prior to the Closing Date, a prospectus supplement to the Canadian Shelf Prospectus in form and substance satisfactory to the UnderwritersAgents, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement reasonably relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein ;
2.6 The Corporation shall mean file with the Final Warrant Prospectus for which a receipt has been obtained from SEC as soon as possible after the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including filing of the Canadian Warrant Supplement and in any event no later than the business day prior to the Closing Date, pursuant to General Instruction II.L of Form F-10, a prospectus supplement to the Registration Statement relating to the Warrant Shares (the “U.S. Warrant Supplement”). Such filing shall, in accordance with General Instruction II.L of Form F-10 be filed with the SEC within one business day after the corresponding Canadian Warrant Supplement is filed with the Principal Regulator. The Corporation acknowledges shall use its commercially reasonable efforts to maintain the effectiveness of the Registration Statement or another shelf registration statement providing for the registration of the offering of the Warrant Shares until the earlier of the expiration date of the Warrants and the date upon which all such Warrants have been exercised.
2.7 The Corporation agrees to pay, as directed by the Lead Agent, for and on behalf of the Agents, upon completion of the Offering the Agents’ Fee and issue, as directed by the Lead Agent, for and on behalf of the Agents, Compensation Shares and Options. The Agents’ Fee is payable and the Compensation Shares and Compensation Options shall be issued at the Time of Closing in consideration of the services to be rendered by the Agents in connection with the Offering, which services shall include:
(a) acting as agents of the Corporation to arrange for the sale of the Offered Securities;
(b) assisting in the preparation of the Prospectus Supplements, the Canadian Warrant Supplement and the U.S. Warrant Supplement together with any documents supplemental thereto or any amending or supplementary prospectus or other supplemental documents or any similar documents (the “Supplementary Material”) required to be filed under the legislation of the Qualifying Jurisdictions and under the U.S. Securities Laws, and performing administrative work in connection with these matters;
(c) advising the Corporation with respect to the Offering;
(d) distributing the Offered Securities to the public both directly and through other registered dealers and brokers; and
(e) all other services arising out of the agreement resulting from the Corporation’s acceptance of this offer.
2.8 The Unit Shares, Flow-Through Shares, Warrants, Warrant Shares, Compensation Shares and Compensation Options to be issued and/or sold by the Corporation hereunder shall be duly and validly created and authorized for issuance by the Corporation and, when issued and/or sold by the Corporation, such Unit Shares, Flow-Through Shares, Warrants, Warrant Shares, Compensation Shares and Compensation Options shall have the rights, privileges, restrictions and conditions that conform in all material respects to the rights, privileges, restrictions and conditions set forth in the Registration Statement, the Shelf Prospectuses, the Prospectus Supplements and any Supplementary Materials, subject to such modifications or changes (if any) prior to the Closing Date as may be agreed to in writing by the Corporation and the Agents. In addition, such Unit Shares, Flow-Through Shares, Warrants, Warrant Shares, Compensation Shares and Compensation Options shall be issued in compliance with all provincial, federal and state securities laws, including, without limitation, Canadian Securities Laws and U.S. Securities Laws.
2.9 The Offered Securities, Compensation Shares and Compensation Options shall be qualified by the Canadian Prospectus under Canadian Securities Laws in the Qualifying Jurisdictions and shall be registered under the U.S. Securities Act by the Registration Statement and the U.S. Prospectus. The distribution of the Offered Securities, Compensation Shares and Compensation Options may also take place in such other jurisdictions as the Agents and Corporation may agree in writing, provided that any such distribution does not obligate the Corporation to prepare or file any additional registration statement, prospectus, offering memorandum, or similar document in connection with the distribution in such other jurisdictions. The Warrant Shares shall be registered under the U.S. Securities Act by the Registration Statement and the U.S. Warrant Supplement.
2.10 The Unit Shares, Flow-Through Shares, Warrants, Warrant Shares and Compensation Shares shall be listed at the Time of Closing on the TSX.
2.11 The Corporation agrees that under no circumstances whatsoever shall the Underwriters Agents will be required permitted to execute a certificate page appoint other registered dealers (or other dealers duly licensed in respect their respective jurisdictions) as their agents for the purpose of assisting in connection with the sale of the Preliminary Warrant Prospectus Offered Securities, and that the Agents may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Agents. The Agents shall require and shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the Agents.
2.12 Each Agent covenants, represents and warrants to the Corporation that it will comply with the rules and policies of the TSX, the Applicable Securities Laws and the applicable laws of each other jurisdiction in which it acts as an agent for the Corporation or offers or sells the Final Warrant Prospectus; andOffered Securities in connection with the Offering.
Appears in 1 contract
Samples: Agency Agreement (Veris Gold Corp.)
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for filing the Final Canadian Prospectus from Supplement with the Commissions and the U.S. Prospectus Supplement with the SEC on or before 5:30 a.m. (Vancouver time) on April 12, 2011.
2.2 Upon completion of the Offering, the Corporation agrees to pay to the Underwriters the Underwriters’ Commission and grant the Compensation Option. The Underwriters’ Commission is payable at the Time of Closing in consideration of the Qualifying Jurisdictions, qualifying the distribution services to be rendered by the Corporation of Underwriters in connection with the UnitsOffering, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described belowwhich services shall include:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions as underwriters of the U.S. Securities Act, an amendment Corporation to purchase the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyShares;
(b) The Corporation shallassisting in the preparation of the Canadian Prospectus Supplement and the U.S. Prospectus Supplement, on or before March 5together with any documents supplemental thereto (collectively, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant ProspectusSupplementary Material”)) required to be filed under the Applicable Securities Laws, under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but performing administrative work in any event no later than one Business Day thereafterconnection with these matters;
(c) distributing the Shares to the public both directly and through other registered dealers and brokers; and
(d) all other services arising out of this Agreement.
2.3 The Corporation shall file with the SEC as soon as possible following the filing distribution of the Preliminary Warrant Shares, the Over-allotment Option, the Compensation Option and the Compensation Option Shares shall be qualified by the Canadian Prospectus with under Canadian Applicable Securities Laws and the Reviewing Authority but Shares, the Over-allotment Option, the Compensation Option and the Compensation Option Shares shall be registered by the U.S. Prospectus under United States Applicable Securities Laws. Shares may also be distributed in any event no later than one Business Day thereaftersuch other jurisdictions as the Corporation and the Underwriters may agree, provided the distribution of Shares in such other jurisdictions is completed in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing laws of such registration statement (the “Warrant Form F-X”);other jurisdictions.
(d) 2.4 The Corporation Base Shares shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof be listed on or before the second Business Day prior Time of Closing on the Exchanges and any Additional Shares shall be listed on the Exchanges on or before the Time of Option Closing.
2.5 The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents to assist in the Offering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Underwriters. The Underwriters shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the Closing Date. The Underwriters.
2.6 Each Underwriter covenants, represents and warrants to the Corporation shall file that it will comply with the Reviewing Authority within one Business Day rules and policies of the issuance Exchanges and with the Applicable Securities Laws or other applicable securities laws and regulations in any other jurisdiction in which it acts as underwriter of a final receipt from the Reviewing Authority a prospectus supplement relating to Corporation in connection with the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. Offering.
2.7 The Corporation acknowledges and agrees that under no circumstances whatsoever shall obligations of the Underwriters under this Section 2.0 are several and not joint or joint and several. No Underwriter will be required to execute a certificate page in respect of the Preliminary Warrant Prospectus liable for any act, omission, default or the Final Warrant Prospectus; andconduct by any other Underwriter or any registered dealer appointed by any other Underwriter.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreementset out herein, the Underwriters offer to purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at severally and not jointly in the Time of Closing on respective percentages set out in section 7.1, and by its acceptance hereof, the Closing DateCorporation agrees to issue and sell to the Underwriters, all, but not less than all, of the UnitsOffered Shares (excluding the Additional Shares) at the Time of Closing on the Closing Date. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any from time up to 30 days after the Closing Datetime, the Corporation shall hereby agrees to sell to the Underwriters and the Underwriters shall agree to purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1requested, at the Time of Closing on the Over-Allotment Closing DateOption Time of Closing.
2.2 This offer is conditional upon, among other things, the Corporation filing the Preliminary Prospectus and obtaining a Passport Decision Document for by 4:00 p.m. (Vancouver time) on February 25, 2014. The Corporation will (a) use its reasonable best efforts to promptly resolve all comments received or deficiencies raised by the Commissions with respect to the Preliminary Prospectus; and (b) file the Final Prospectus and obtain a Passport Decision Document from the Commissions Principal Regulator as soon as possible after such comments have been satisfied and deficiencies resolved, and in the Qualifying Jurisdictionsany event no later than 4:00 p.m. (Vancouver time) on March 6, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 20092014, or such later date as Dundee may agree on behalf of the Lead Underwriters, acting reasonably.
2.3 Subject to the terms and conditions set out herein, the Corporation agrees to pay to Dundee, on behalf of the Underwriters, on the Closing Date and the Over-Allotment Option Closing Date, if applicable, the Underwriters’ Fee payable on the Offered Shares or Additional Shares sold on such date. The Underwriters’ Fee is payable at the Time of Closing and Over-Allotment Option Time of Closing, as the case may be, in consideration of the services to be rendered by the Underwriters as described herein.
2.4 The distribution of the Offered Shares and the grant of the Over-Allotment Option shall be qualified by the Prospectuses under Applicable Securities Laws in the Qualifying Jurisdictions.
2.5 Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Shares pursuant to the Final Prospectus. Each other Purchaser shall purchase in accordance with such procedures as the Corporation and the Underwriters may mutually agree, acting reasonably, in order to fully comply with the Applicable Securities Laws and any applicable laws of the jurisdiction in which such purchase takes place, provided that the distribution of Offered Shares and/or Additional Shares in any jurisdiction other than a Qualifying Jurisdiction is completed in accordance with the applicable securities laws of such other jurisdiction(s) and will not require the registration of the Offered Shares or the Additional Shares or the filing of a prospectus or compliance with similar requirements under the laws of such jurisdiction. The obligation Subject to being notified by Dundee on behalf of the Underwriters with respect to purchase the offer for sale of any Offered Securities shallShares to Purchasers outside of Canada and the United States, the Corporation also agrees to use its commercially reasonable efforts to file within the periods stipulated under applicable laws and at the Corporation’s expense all private placement forms required to be filed by the Corporation and the Purchasers, respectively, in addition connection with the Offering and agrees to being pay all filing fees required to be paid in connection therewith so that the distribution of the Offered Shares outside of Canada and the United States may lawfully occur without the necessity of registering the Offered Shares or filing a prospectus or any similar document under the applicable laws outside of Canada and the United States, if applicable.
2.6 The Offered Shares shall be listed at Closing on the NYSE MKT and conditionally approved for listing on the TSX, subject to Standard Listing Conditions.
2.7 The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents to assist in the Offering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Underwriters at their sole expense. The Underwriters shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms and conditions described herein, be conditional on of this Agreement as applicable to the following steps having been taken within Underwriters.
2.8 During the time frames described belowdistribution of the Offered Shares:
(a) The the Corporation shall file prepare, in consultation with Dundee, and shall approve in writing, prior to the SECtime that any such marketing materials are provided to potential Purchasers, a template version of any marketing materials reasonably requested to be provided by the Underwriters to any such potential Purchasers, and such marketing materials shall comply with Applicable Securities Laws and shall be acceptable in form and substance satisfactory to the UnderwritersUnderwriters and their counsel, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation Dundee shall, on or before March 5behalf of the Underwriters, 2009, file with the Reviewing Authority approve a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating template version of any such marketing materials in writing prior to the Warrant Shares and use its best efforts time that such marketing materials are provided to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafterpotential Purchasers;
(c) The the Corporation shall file with the SEC a template version of any such marketing materials on SEDAR as soon as possible following reasonably practical after such marketing materials are so approved in writing by the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but Corporation and Dundee and in any event no later than one Business Day thereafteron or before the day the marketing materials are first provided to any potential Purchaser, and any comparables shall be removed from the template version in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement NI 44-101 prior to filing such on SEDAR (including documents incorporated by reference therein, as it has been and may be further amended from time to timeprovided that if any such comparables are removed, the “Warrant Registration Statement”) on Form F-10 providing for Corporation shall deliver a complete template version of any such marketing materials to the registration of the Warrant Shares under the U.S. Securities ActCommission), which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing shall provide a copy of such registration statement (filed template version to the “Warrant Form F-X”);Underwriters as soon as practicable following such filing; and
(d) The Corporation shall file with following the Reviewing Authority as soon as possible approvals and filings set forth in Sections 2.8 (a) to (c) above, the Underwriters may provide a final base shelf prospectus and supplement thereto in form and substance satisfactory limited use version of such marketing materials to the Underwriters, acting reasonably, and potential Purchasers in accordance with the procedures set out Applicable Securities Laws.
2.9 The Corporation and each Underwriter, on a several basis, covenants and agrees not to provide any potential Purchaser with any marketing materials except for marketing materials which have been approved as contemplated in NI 44-102 relating Section 2.8.
2.10 Each Underwriter, severally and not jointly, nor jointly and severally, covenants, represents and warrants to the Warrant Shares Corporation that:
(the “Final Warrant Prospectus”a) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file it will comply with the Reviewing Authority within one Business Day rules and policies of the issuance TSX and with all applicable securities legislation of a final receipt from each Qualifying Jurisdiction and such other jurisdictions outside of Canada and the Reviewing Authority a prospectus supplement relating United States in which it acts as underwriter of the Corporation in connection with the Offering;
(b) all offers and sales of Offered Shares in the United States shall only be made in compliance with Schedule “C” to this Agreement; and
(c) during the Warrant Shares (distribution of the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing AuthorityOffered Shares, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall at least one of the Underwriters be required to execute a certificate page is duly registered under the Applicable Securities laws in respect each of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andQualifying Jurisdictions.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units Shares of the Corporation, Corporation and by acceptance of this Agreement Agreement, the Corporation agrees to sell to the Underwriters, Underwriters and the Underwriters agree to purchase at the Time of Closing on the Closing Date, and if applicable, at the Over-Allotment Option Closing Time on the Over-Allotment Option Closing Date all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Datesaid Shares.
2.2 This offer is conditional uponThe Corporation shall, among other thingsas soon as possible, fulfill all legal requirements to enable the Corporation obtaining distribution of the Shares and in any event shall file and obtain a Passport Decision Document receipt dated the date hereof for an amendment to the Preliminary Prospectus containing the pricing information, and shall use all reasonable commercial efforts to file and obtain a receipt for the Final Prospectus on or prior to 4:30 pm (Vancouver time) on March 8, 2007, from the Commissions securities regulatory authorities in each of the Qualifying Jurisdictions, Jurisdictions pursuant to National Instrument 44-101 – Short Form Prospectus Distributions qualifying the distribution by the Corporation of the Units, Shares to purchasers resident in such Qualifying Jurisdictions.
2.3 The Corporation agrees to pay to the Underwriters upon completion of the Offering a fee (the “Underwriters Fee”) equal to 5.0% of the gross proceeds of the Offering. The Underwriters Fee is payable at the Time of Closing and the Over-Allotment Option Closing Time (if applicable and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation extent only of the Underwriters to purchase any Offered Securities shallgross proceeds received at each such time), in addition consideration of the services to being subject to be rendered by the other terms and conditions described hereinUnderwriters in connection with the Offering, be conditional on the following steps having been taken within the time frames described belowwhich services shall include:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions as Underwriters of the U.S. Securities Act, an amendment Corporation to purchase the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyShares;
(b) The Corporation shallassisting in the preparation of the Preliminary Prospectus and the Final Prospectus together with any documents supplemental thereto or any amending or supplementary prospectus or other supplemental documents or any similar document (collectively, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant ProspectusSupplementary Material”), ) required to be filed under NI 44-102 relating to the Warrant Shares legislation of the Qualifying Jurisdictions and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but performing administrative work in any event no later than one Business Day thereafterconnection with these matters;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon advising the Corporation on Form F-X in conjunction with respect to the filing of such registration statement (the “Warrant Form F-X”)Offering;
(d) The Corporation shall file with distributing the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory Shares to the Underwriterspublic both directly and through other registered dealers and brokers; and
(e) all other services arising out of the agreement resulting from the Corporation’s acceptance of this offer.
2.4 The distribution of the Shares shall be qualified by the Prospectuses under Applicable Securities Laws in the Qualifying Jurisdictions. Shares may also be distributed:
(a) to U.S. Substituted Purchasers, acting reasonablyprovided that no offers or sales may be made in the United States except as provided in Schedule “A” hereto, and the terms and conditions and representations, warranties and covenants of the parties contained in Schedule “A” hereto are hereby incorporated by reference. Subject to the foregoing, the Underwriters will not directly sell or distribute any Shares in the United States, but may arrange for Substituted Purchasers for the Shares in the United States through their respective U.S. registered broker-dealer affiliates as contemplated by Schedule “A” hereto, the provisions of which are agreed to by the Corporation and the Underwriters. The Underwriters shall cause similar undertakings to be contained in any agreements among selling firms, if any, and the U.S. broker-dealer affiliates; and
(b) in such other jurisdictions as the Corporation and the Underwriters may agree, provided the distribution of Shares in such other jurisdictions are completed in accordance with the procedures set out applicable laws of such other jurisdictions. The Shares shall be listed at Closing, and if applicable, at the Over-Allotment Option Closing, on the Exchanges.
2.5 The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in NI 44-102 relating their respective jurisdictions) as their agents to assist in the Offering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them provided that no additional remuneration is payable by the Corporation. Such remuneration shall be payable by the Underwriters. The Underwriters shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the Warrant Shares (the “Final Warrant Prospectus”) Underwriters.
2.6 Each Underwriter covenants, represents and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior warrants to the Closing Date. The Corporation shall file that it will comply with the Reviewing Authority within one Business Day rules and policies of the issuance Exchanges and with the Applicable Securities Laws of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for each Qualifying Jurisdiction or other jurisdiction in which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect it acts as Underwriter of the Preliminary Warrant Prospectus or Corporation in connection with the Final Warrant Prospectus; andOffering.
Appears in 1 contract
Samples: Underwriting Agreement (Fronteer Development Group Inc)
Nature of the Transaction. 2.1 Subject to It is the terms and conditions of this Agreement, the Underwriters offer to purchase the Units intention of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described belowparties that:
(a) The Corporation shall file with the SECTransaction constitutes an operating lease from Lessor to Lessee for purposes of Lessee’s financial reporting, in form and substance satisfactory to the Underwritersincluding, acting reasonablywithout limitation, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyunder Financial Accounting Standards Codification 840;
(b) The Corporation shallfor purposes of federal and all state and local income and transfer taxes and bankruptcy, on or before March 5insolvency, 2009conservatorships and receiverships (including the substantive law upon which bankruptcy insolvency, file with conservatorships and receiverships proceedings are based) purposes:
(i) the Reviewing Authority Transaction constitutes a preliminary base shelf prospectus (financing by Lessor to Lessee and preserves beneficial ownership in the “Preliminary Warrant Prospectus”)Leased Property in Lessee, under NI 44-102 relating Lessee will be entitled to all tax benefits ordinarily available to owners of property similar to the Warrant Shares Leased Property for tax purposes and use its best efforts the obligations of Lessee to obtain pay Basic Rent shall be treated as payments of interest to Lessor, and the issuance payment by Lessee of any amounts in respect of the Reviewing Authority Lease Balance shall be treated as payments of principal to Lessor;
(ii) to the extent the Transaction is deemed a receipt financing, this Memorandum of Lease provides for a security interest or a Lien, as the Preliminary Warrant Prospectus case may be, in Lessee’s interest in the Mortgaged Property, including without limitation other Lessee Collateral, in favor of Lessor to secure Lessee’s payment and performance of the Obligations;
(iii) the Lease creates a Lien on and security interest in Lessee Collateral in favor of Lessor; and
(iv) the Lease is intended as soon a deed of trust on the Leased Property, notwithstanding the remedies in Section 13.1 of the Lease that are more customarily available to lessors of real property. Nevertheless, Lessee acknowledges and agrees that Lessor has not made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Transaction as possible but in any event no later than one Business Day thereafter;it deems appropriate.
(c) The Corporation shall file with Specifically, without limiting the SEC as soon as possible following generality of clause (a) above, the filing parties hereto intend and agree that in the event of any insolvency, conservatorship or receivership proceedings or matters or a petition under the United States bankruptcy laws, or any other applicable insolvency, conservatorship or receivership laws or statute of the Preliminary Warrant Prospectus with United States of America or any State thereof affecting Lessee or any collection actions, the Reviewing Authority but in any event no later than one Business Day thereaftertransactions evidenced by the Operative Documents (including, in accordance with without limitation, the provisions Lease) constitute loans made directly to Lessee by Lessor as an unrelated third party lender, and that Lessor holds title to, and Lessor holds a lien on, the Leased Property for the benefit of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been Lessor to secure Lessee’s obligations to repay such loans to Lessor and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration all other amounts due under any of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);Operative Documents.
(d) The Corporation Specifically, but without limiting the generality of subsection (a) above, Lessor and Lessee intend and agree that, for the purpose of securing Lessee’s obligations for the repayment of the Obligations, (i) the Lease shall file also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the UCC; (ii) the conveyance provided for hereby shall be deemed to be a grant by Lessee to Lessor, of a security interest in and to the Deed of Trust Trustee of a mortgage and deed of trust lien on all of Lessee’s present and future title and interest in and to the Leased Property and the other Lessee Collateral, and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the other Lessee Collateral unto Lessor, (iii) to the extent permitted by Applicable Laws, the possession by Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or tangible chattel paper shall be deemed to be “possession” or “control” by the “secured party” for purposes of perfecting the security interest pursuant to the UCC; and (iv) to the extent permitted by Applicable Law, notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Law. Lessor and Lessee shall, to the extent consistent with the Reviewing Authority Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as soon as possible may be necessary to ensure that this Memorandum of Lease creates a final base shelf prospectus mortgage lien and supplement thereto a security interest in form the Mortgaged Property and substance satisfactory to the Underwriters, acting reasonably, and other Lessee Collateral in accordance with this Section 15 and, such mortgage lien and security interest is a perfected security interest in the procedures set out in NI 44-102 relating Mortgaged Property and the other Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Law and will be maintained as such throughout the Term.
(e) If (contrary to the Warrant Shares intent of the parties as expressed above and in Section 2.4 of the Participation Agreement) it is determined that Lessee is not, under applicable state law as applied to the Operative Documents, the equitable owner of the Leased Property and the borrower from Lessor in a financing arrangement, but rather is a tenant under the Lease with an option to purchase from Lessor as provided in Sections 14.1 or 17.22 of the Lease (as the case may be, the “Final Warrant ProspectusPayoff Option”) ), then the parties intend that the Payoff Option be secured by a lien and shall obtain security interest against the Leased Property. Accordingly, Lessor does hereby grant to Lessee a receipt lien and security interest against the Leased Property, including all rights, title and interests of Lessor from the Reviewing Authority time to time in respect thereof on or before the second Business Day prior and to the Closing DateLand and Improvements, for the sole purpose of securing (1) Lessor’s obligation to convey the Leased Property to Lessee if Lessee exercises the Payoff Option and tenders payment of the Purchase Amount to Lessor as provided herein, and (2) Lessee’s right to recover any damages from Lessor caused by a breach of such obligation, including any such breach caused by a rejection or termination of the Payoff Option in any bankruptcy or insolvency proceeding instituted by or against Lessor, as debtor. Lessee may enforce such lien and security interest judicially after any such breach by Lessor, but not otherwise. The Corporation foregoing grant shall file with terminate without further action upon the Reviewing Authority within one Business Day termination or expiration of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andPayoff Option.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject The Company appoints the Agent as its sole and exclusive agent for the Offering, and the Agent hereby agrees to act as the exclusive agent of the Company to use its reasonable best efforts to offer and sell the Shares in the Qualifying Jurisdictions to potential Purchasers resident in the Qualifying Jurisdictions.
2.2 If in the opinion of the Agent it is necessary, the Agent will form, manage and participate in a group of registered securities dealers (the "Selling Group") to offer and sell the Shares as provided for hereunder. In the event that a Selling Group is formed, the Agent will manage the Selling Group to the extent customary in the securities industry in Canada and require each member of the Selling Group to conduct the Offering on the terms and conditions of set forth in this Agreement. Each member of the Selling Group shall be appropriately registered under the Applicable Securities Laws of the Qualifying Jurisdictions in which such member of the Selling Group offers and sells the Shares so as to permit it to lawfully offer and sell the Shares in such jurisdiction.
2.3 The Company covenants and agrees with the Agent that it will:
(a) prepare and file with the Commissions under the Applicable Securities Laws of the Qualifying Jurisdictions, a Preliminary Prospectus, together with the required supporting documents, to permit the Agent to solicit expressions of interest for the Offering;
(b) use its reasonable best efforts to address, as expeditiously as possible, the Underwriters offer to purchase the Units comments made in respect of the CorporationPreliminary Prospectus by the Commissions;
(c) prepare and file, as soon as practicable after all of the comments referred to in subparagraph (b) above have been addressed, under the Applicable Securities Laws of the Qualifying Jurisdictions, the Final Prospectus, together with the required supporting documents, and use its reasonable best efforts to obtain the Final Receipt on or before December 31, 1999 or such other date as agreed to by acceptance the Company and the Agents, and take all other steps and proceedings that may be necessary in order to qualify, under the Applicable Securities Laws of this Agreement the Corporation agrees to sell Qualifying Jurisdictions, the distribution of the Qualified Securities;
(d) prior to the UnderwritersEffective Date, apply to the Exchange for a conditional listing of its common shares, and prepare and file with the Underwriters agree Exchange, using its reasonable best efforts to purchase at do so, a Preliminary Listing Submission, together with the Time of Closing on required supporting documents, to obtain comfort that the Closing DateConditional Listing will be secured;
(e) use its reasonable best efforts to address, allas expeditiously as possible, but not less than all, the comments made in respect of the Units. In Preliminary Listing Submission by the event Exchange; and
(f) prepare and file with the Underwriters exercise their right pursuant Exchange, as soon as practicable after the Final Receipt for the Final Prospectus has been issued, a Final Listing Submission, together with the required supporting documents, to secure, using its reasonable efforts to do so on or before January 15, 2000, the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants conditional listing and, subsequently, and within the time required as disclosed in whole the Final Prospectus, the Full Listing.
2.4 Following the Effective Date and after consulting with the Exchange, the Company and the Agent will set the Offering Day.
2.5 The Offering Day will be on or in part and at any time up to 30 before the earlier of the day which is:
(a) 90 days after the Closing Effective Date, ; and
(b) 12 months after the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number date of Additional Common Shares and/or Additional Warrants requested issue by the Underwriters pursuant to Commission of the notice delivered to preliminary receipt for the Corporation Prospectus.
2.6 The Offering will be made through the facilities of and in accordance with Section 3.1the rules and policies of the Exchange.
2.7 After the Offering has been completed, at the Time Company and the Agent will file any documents required by the Exchange in order to remove the conditional listing and to list and commence trading of Closing the common shares of the Issuer on the Over-Allotment Closing DateExchange.
2.2 This offer 2.8 The Agent will advise the Company and its counsel in writing when the distribution under the Prospectus is conditional uponcomplete.
2.9 The Agent will purchase all of the Shares for which subscriptions have not been received by the Offering Day. In consideration for the Agent's guarantee to purchase unsubscribed Shares, the Company will issue the Agent's Warrant to the Agent, or to members of the Agent's Selling Group as directed by the Agent. The Agent's Warrant will be exercisable for a period of one year from the Listing Date at a price equal to the Offering Price. The form of Agent's Warrant will be provided to the Company by the Agent and the terms and conditions contained therein will include, among other things, the Corporation obtaining a Passport Decision Document provisions for the Final Prospectus from the Commissions appropriate adjustment in the Qualifying Jurisdictionsclass, qualifying the distribution by the Corporation number and price of the Unitsshares to be issued under the Agent's Warrant upon the occurrence of certain events, including any subdivision, consolidation or reclassification of the shares, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, payment of stock dividends or such later date as the Lead Underwriters may agree, acting reasonably. The obligation amalgamation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:Company.
(a) 2.10 The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and Company will use its best efforts to obtain assist the issuance by Agent in placing the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonablyShares, and in accordance this regard will provide the Agent with a "President's List" of all persons, whether brokerage firms, institutional investors or others who have expressed interest in participating in any financing to be carried out by the procedures set out in NI 44-102 relating Company, and to direct to the Warrant Shares (Agent any and all unsolicited inquiries regarding this Offering. It is agreed that the “Final Warrant Prospectus”) and shall obtain a receipt from Agent will have the Reviewing Authority in respect thereof on or before right but not the second Business Day prior obligation to place the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andPresident's List.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreementset out herein, the Underwriters offer to purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at severally and not jointly in the Time of Closing on respective percentages set out in section 7.1, and by its acceptance hereof, the Closing DateCorporation agrees to issue and sell to the Underwriters, all, but not less than all, of the UnitsOffered Shares (excluding the Additional Shares) at the Time of Closing on the Closing Date. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any from time up to 30 days after the Closing Datetime, the Corporation shall hereby agrees to sell to the Underwriters and the Underwriters shall agree to purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1requested, at the Time of Closing on the Over-Allotment Closing DateOption Time of Closing.
2.2 This offer is conditional upon, among other things, the Corporation filing the Preliminary Prospectus on October 12, 2012 and obtaining a Passport Decision Document for from the Principal Regulator pursuant to the Passport System dated October 12, 2012. The Corporation will (a) use its reasonable best efforts to promptly resolve all comments received or deficiencies raised by the Commissions with respect to the Preliminary Prospectus; and (b) file the Final Prospectus and obtain a Passport Decision Document from the Commissions Principal Regulator as soon as possible after such comments have been satisfied and deficiencies resolved, and in the Qualifying Jurisdictionsany event no later than October 23, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 20092012, or such later date as Dundee may agree on behalf of the Lead Underwriters, acting reasonably.
2.3 Subject to the terms and conditions set out herein, the Corporation agrees to pay to Dundee, on behalf of the Underwriters, on the Closing Date and the Over-Allotment Option Closing Date, if applicable, the Underwriters’ Fee payable on the Offered Shares or Additional Shares sold on such date. The Underwriters’ Fee is payable at the Time of Closing and Over-Allotment Option Time of Closing, as the case may be, in consideration of the services to be rendered by the Underwriters as described herein.
2.4 The distribution of the Offered Shares and the grant of the Over-Allotment Option shall be qualified by the Prospectuses under Applicable Securities Laws in the Qualifying Jurisdictions.
2.5 Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Shares pursuant to the Final Prospectus. Each other Purchaser shall purchase in accordance with such procedures as the Corporation and the Underwriters may mutually agree, acting reasonably, in order to fully comply with the Applicable Securities Laws and any applicable laws of the jurisdiction in which such purchase takes place, provided that the distribution of Offered Shares and/or Additional Shares in any jurisdiction other than a Qualifying Jurisdiction is completed in accordance with the applicable securities laws of such other jurisdiction(s) and will not require the registration of the Offered Shares or the Additional Shares or the filing of a prospectus or compliance with similar requirements under the laws of such jurisdiction. The obligation Subject to being notified by Dundee on behalf of the Underwriters with respect to purchase the offer for sale of any Offered Securities shallShares to Purchasers outside of Canada and the United States, the Corporation also agrees to use its commercially reasonable efforts to file within the periods stipulated under applicable laws and at the Corporation’s expense all private placement forms required to be filed by the Corporation and the Purchasers, respectively, in addition connection with the Offering and agrees to being subject pay all filing fees required to be paid in connection therewith so that the distribution of the Offered Shares outside of Canada and the United States may lawfully occur without the necessity of registering the Offered Shares or filing a prospectus or any similar document under the applicable laws outside of Canada and the United States, if applicable.
2.6 The Offered Shares shall be listed at Closing on the Exchanges.
2.7 The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents to assist in the Offering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Underwriters at their sole expense. The Underwriters shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the other terms Underwriters.
2.8 Each Underwriter, severally and conditions described hereinnot jointly, be conditional on nor jointly and severally, covenants, represents and warrants to the following steps having been taken within the time frames described belowCorporation that:
(a) The Corporation shall file it will comply with the SEC, rules and policies of the TSXV and with all applicable securities legislation of each Qualifying Jurisdiction and such other jurisdictions outside of Canada and the United States in form and substance satisfactory to which it acts as underwriter of the Underwriters, acting reasonably, and Corporation in accordance connection with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyOffering;
(b) The Corporation shall, on or before March 5, 2009, file all offers and sales of Offered Shares in the United States shall only be made in compliance with the Reviewing Authority a preliminary base shelf prospectus (the Schedule “Preliminary Warrant Prospectus”), under NI 44-102 relating C” to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;this Agreement; and
(c) The Corporation shall file with during the SEC as soon as possible following the filing distribution of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than Offered Shares, at least one Business Day thereafter, in accordance with the provisions of the U.S. Underwriters is duly registered under the Applicable Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration laws in each of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; andQualifying Jurisdictions.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for filing the Final Prospectus from Supplement with the Commissions and the U.S. Prospectus Supplement with the SEC on or before 6:30 p.m. (Vancouver time) on December 14, 2010.
2.2 The Corporation agrees to pay to the Underwriters upon completion of the Offering the Underwriters’ Fee. The Underwriters’ Fee is payable at the Time of Closing in consideration of the Qualifying Jurisdictions, qualifying the distribution services to be rendered by the Corporation of Underwriters in connection with the UnitsOffering, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described belowwhich services shall include:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions as underwriters of the U.S. Securities Act, an amendment Corporation to purchase the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyShares;
(b) The Corporation shallassisting in the preparation of the Prospectus Supplement together with any documents supplemental thereto (collectively, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant ProspectusSupplementary Material”), ) required to be filed under NI 44-102 relating to the Warrant Shares legislation of the Qualifying Jurisdictions and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but performing administrative work in any event no later than one Business Day thereafterconnection with these matters;
(c) The Corporation shall file with distributing the SEC as soon as possible following Shares to the filing public both directly and through other registered dealers and brokers; and
(d) all other services arising out of the Preliminary Warrant agreement resulting from the Corporation’s acceptance of this offer.
2.3 The distribution of the Shares, the Over-allotment Option and any Additional Shares shall be qualified by the Prospectus with and the Reviewing Authority but U.S. Final Prospectus under Applicable Securities Laws in any event no later than one Business Day thereafterthe Qualifying Jurisdictions. Shares and/or Additional Shares may also be distributed in such other jurisdictions as the Corporation and the Underwriters may agree, provided the distribution of Shares and/or Additional Shares in such other jurisdictions is completed in accordance with the provisions applicable laws of such other jurisdictions.
2.4 The Shares shall be listed at Closing on the Exchanges and any Additional Shares shall be listed on the Exchanges on the earlier of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 Closing Date and the applicable rules date of their issuance.
2.5 The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents to assist in the Offering and regulations of that the SEC) along Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Underwriters. The Underwriters shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the filing with the SEC terms of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority this Agreement as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory applicable to the Underwriters.
2.6 Each Underwriter covenants, acting reasonably, represents and in accordance warrants to the Corporation that it will comply with the procedures set out in NI 44-102 relating to rules and policies of the Warrant Shares (the “Final Warrant Prospectus”) Exchanges and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day Applicable Securities Laws of each Qualifying Jurisdiction or other jurisdiction in which it acts as Underwriter of the issuance Corporation in connection with the Offering.
2.7 The obligations of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters under this section 2 are several and not joint or joint and several. No Underwriter will be required to execute a certificate page in respect of the Preliminary Warrant Prospectus liable for any act, omission, default or the Final Warrant Prospectus; andconduct by any other Underwriter or any registered dealer appointed by any other Underwriter.
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units Shares of the Corporation, Corporation and by acceptance of this Agreement Agreement, the Corporation agrees to sell to the Underwriters, Underwriters and the Underwriters agree to purchase at the Time of Closing on the Closing Date, Date all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Datesaid Shares.
2.2 This offer is conditional upon, among other things, the Corporation obtaining filing the Preliminary Prospectus and using its commercially reasonable best efforts to obtain a Passport Decision Document receipt for the Final Preliminary Prospectus from the Commissions securities regulatory authorities in each of the Qualifying Jurisdictions, Jurisdictions pursuant to National Instrument 44-101 – Short Form Prospectus Distributions qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4such provinces, 2009by May 16, or such later date as 2006.
2.3 The Corporation agrees to pay to the Lead Underwriters may agree, acting reasonablyupon completion of the Offering a fee (the "Underwriters' Fee") equal to 5.5% of the gross proceeds of the Offering. The obligation Underwriters' Fee is payable at the Time of Closing in consideration of the services to be rendered by the Underwriters to purchase any Offered Securities shallin connection with the Offering, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described belowwhich services shall include:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions as Underwriters of the U.S. Securities Act, an amendment Corporation to purchase the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonablyShares;
(b) The Corporation shall, on or before March 5, 2009, file with assisting in the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority preparation of a receipt for the Preliminary Warrant Prospectus as soon as possible but and the Final Prospectus together with any documents supplemental thereto or any amending or supplementary prospectus or other supplemental documents or any similar document (collectively, the "Supplementary Material") required to be filed under the legislation of the Qualifying Jurisdictions and performing administrative work in any event no later than one Business Day thereafterconnection with these matters;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon advising the Corporation on Form F-X in conjunction with respect to the filing of such registration statement (the “Warrant Form F-X”)Offering;
(d) The Corporation shall file with distributing the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory Shares to the Underwriterspublic both directly and through other registered dealers and brokers; and
(e) all other services arising out of the agreement resulting from the Corporation's acceptance of this offer.
2.4 The distribution of the Shares shall be qualified by the Prospectuses under Applicable Securities Laws in the Qualifying Jurisdictions. Shares may also be distributed:
(a) to U.S. Substituted Purchasers, acting reasonablyprovided that no offers or sales may be made in the United States except as provided in Schedule "A" hereto, and the terms and conditions and representations, warranties and covenants of the parties contained in Schedule "A" hereto are hereby incorporated by reference. Subject to the foregoing, the Underwriters will not directly sell or distribute any Shares in the United States, but may arrange for Substituted Purchasers for the Shares in the United States through their respective U.S. registered broker-dealer affiliates as contemplated by Schedule "A" hereto, the provisions of which are agreed to by the Corporation and the Underwriters. The Underwriters shall cause similar undertakings to be contained in any agreements among selling firms, if any, and the U.S. broker-dealer affiliates; and
(b) in such other jurisdictions as the Corporation and the Underwriters may agree, provided the distribution of Shares in such other jurisdictions are completed in accordance with the procedures set out applicable laws of such other jurisdictions. The Shares shall be listed at Closing on the Exchanges.
2.5 The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in NI 44-102 relating their respective jurisdictions) as their agents to assist in the Offering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them provided that no additional remuneration is payable by the Corporation. Such remuneration shall be payable by the Underwriters. The Underwriters shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the Warrant Shares (the “Final Warrant Prospectus”) Underwriters.
2.6 Each Underwriter covenants, represents and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior warrants to the Closing Date. The Corporation shall file that it will comply with the Reviewing Authority within one Business Day rules and policies of the issuance Exchanges and with the Applicable Securities Laws of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for each Qualifying Jurisdiction or other jurisdiction in which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect it acts as Underwriter of the Preliminary Warrant Prospectus or Corporation in connection with the Final Warrant Prospectus; andOffering.
Appears in 1 contract
Samples: Underwriting Agreement (Fronteer Development Group Inc)
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units (excluding the Additional Units) of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Time of Closing on the Closing Date, all, but not less than all, of the Units. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants Units in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants Units requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document an MRRS decision document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, pursuant to NI 44-101 qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants Units to purchasers resident in each Qualifying Jurisdiction dated effective March 4April 12, 20092007, or such later date as the Lead Underwriters Underwriter may agree, acting reasonably. The obligation of the Underwriters Underwriter to purchase any Offered Securities Units shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:
(a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4April 12, 2009 2007, but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters Underwriter may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof no later than on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Prospectus or the Final Warrant Prospectus; and
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units Convertible Debentures of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Time of Closing on the Closing Date, all, but not less than all, of the UnitsConvertible Debentures. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common Shares and/or Additional Warrants Convertible Debentures in whole or in part and at any time up to 30 days after the Closing Date, the Corporation shall sell to the Underwriters and the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants Convertible Debentures requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date. It is understood that the Underwriters intend to arrange for substituted purchasers for the Offered Securities at the Offering Price, resident in the Qualifying Jurisdictions and in those jurisdictions outside of Canada permitted hereunder where the Offered Securities may be lawfully sold pursuant to the terms and conditions hereof, in which case the Corporation will sell such Offered Securities (or part thereof) to such substituted purchasers and the Underwriters’ obligation to purchase the Offered Securities shall be rateably reduced.
2.2 This offer is conditional upon, among other things,
(a) the Corporation obtaining a Passport Decision Document for the Preliminary Prospectus dated on or before November 4, 2009,
(b) the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option Convertible Debentures and any Additional Common Shares and/or Additional Warrants Convertible Debentures to purchasers resident in each Qualifying Jurisdiction Jurisdictions dated effective March 4on or before November 11, 2009, or such later date as the Lead Underwriters Underwriter and the Corporation may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:,
(ac) The Corporation shall file with the SECclosing taking place at 5:00 a.m. (Vancouver time) on November 17, in form and substance satisfactory to the Underwriters2009, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other time and date as mutually agreed to by the Corporation and the Lead Underwriters may agree acting reasonablyUnderwriter, on behalf of the Underwriters;
(bd) The the Corporation shall, on or before March 5November 9, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Debenture Shares Prospectus”), under NI 44-102 relating to the Warrant Debenture Shares and use its best efforts to obtain the issuance by from the Reviewing Authority of a receipt for the Preliminary Warrant Debenture Shares Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(ce) The the Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Debenture Shares Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein), as it has been and may be further amended from time to time, time (the “Warrant Debenture Shares Registration Statement”) on Form F-10 providing for the registration of the Warrant Debenture Shares under the U.S. Securities Act, which includes the Preliminary Warrant Debenture Shares Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Debenture Shares Form F-X”);,
(df) The the Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-44- 102 relating to the Warrant Debenture Shares (the “Final Warrant Debenture Shares Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Debenture Shares (the “Canadian Warrant Debenture Shares Supplement”). Reference to “Canadian Warrant Debenture Shares Prospectus” herein shall mean the Final Warrant Debenture Shares Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including the Canadian Warrant Debenture Shares Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be required to execute a certificate page in respect of the Preliminary Warrant Debenture Shares Prospectus or the Final Warrant Debenture Shares Prospectus; , and
Appears in 1 contract
Nature of the Transaction. 2.1 Subject to the terms and conditions of this Agreement, we understand that the Underwriters Corporation, in connection with the Offering, wishes to appoint the Agents as exclusive agents of the Corporation for the purpose of offering for sale, on a best efforts basis, the Offered Units.
2.2 The Corporation has prepared and filed the Canadian Shelf Prospectus with the Commissions, providing for the offer and sale, from time to purchase the Units time, of up to $60 million of, among other securities of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to Offered Units. The Principal Regulator has issued the Underwriters, and the Underwriters agree to purchase at the Time of Closing Passport Decision Document on the Closing Date, all, but not less than all, behalf of the Units. In Commissions.
2.3 The Corporation has also prepared and filed the event Canadian Preliminary Prospectus Supplement with the Underwriters exercise their right Commissions in each of the Qualifying Jurisdictions in connection with the Offering.
2.4 The Corporation has also prepared and filed with the SEC pursuant to the OverCanada/U.S. Multi-Allotment Option to purchase Additional Common Shares and/or Additional Warrants in whole or in part Jurisdictional Disclosure System adopted by the Qualifying Jurisdictions and at any time up to 30 days after the Closing DateSEC, the Registration Statement. The Corporation shall sell has also prepared and filed with the SEC the Form F-X. No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC, nor has any proceeding with respect thereto been instituted. The Corporation has fulfilled and complied with, to the Underwriters and reasonable satisfaction of the Underwriters shall purchase that number of Additional Common Shares and/or Additional Warrants requested Agents, the U.S. Securities Laws required to be fulfilled or complied with by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at order to enable the Time of Closing on Offered Units to be distributed to the Over-Allotment Closing Datepublic in the United States.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:
(a) 2.5 The Corporation shall file with the SECPrincipal Regulator as soon as possible and in any event no later than the business day prior to the Closing Date, a prospectus supplement to the Canadian Shelf Prospectus in form and substance satisfactory to the UnderwritersAgents, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;
(b) The Corporation shall, on or before March 5, 2009, file with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”), under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;
(c) The Corporation shall file with the SEC as soon as possible following the filing of the Preliminary Warrant Prospectus with the Reviewing Authority but in any event no later than one Business Day thereafter, in accordance with the provisions of the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it has been and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing with the SEC of an appointment of an agent for service of process upon the Corporation on Form F-X in conjunction with the filing of such registration statement (the “Warrant Form F-X”);
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the procedures set out in NI 44-102 relating to the Warrant Shares (the “Final Warrant Prospectus”) and shall obtain a receipt from the Reviewing Authority in respect thereof on or before the second Business Day prior to the Closing Date. The Corporation shall file with the Reviewing Authority within one Business Day of the issuance of a final receipt from the Reviewing Authority a prospectus supplement reasonably relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein ;
2.6 The Corporation shall mean file with the Final Warrant Prospectus for which a receipt has been obtained from SEC as soon as possible after the Reviewing Authority, including the documents incorporated by reference therein and prospectus supplement thereto, including filing of the Canadian Warrant Supplement and in any event no later than the business day prior to the Closing Date, pursuant to General Instruction II.L of Form F-10, a prospectus supplement to the Registration Statement relating to the Warrant Shares (the “U.S. Warrant Supplement”). Such filing shall, in accordance with General Instruction II.L of Form F-10 be filed with the SEC within one business day after the corresponding Canadian Warrant Supplement is filed with the Principal Regulator. The Corporation acknowledges shall use its commercially reasonable efforts to maintain the effectiveness of the Registration Statement or another shelf registration statement providing for the registration of the offering of the Warrant Shares until the earlier of the expiration date of the Warrants and the date upon which all such Warrants have been exercised.
2.7 The Corporation agrees that under no circumstances whatsoever to pay, as directed by the Lead Agents, for and on behalf of Agents, upon completion of the Offering the Agents’ Fee and issue, as directed by the Lead Agents, for and on behalf of the Agents, Compensation Options. The Agents’ Fee is payable and the Compensation Options shall be issued at the Underwriters Time of Closing in consideration of the services to be rendered by the Agents in connection with the Offering, which services shall include:
(a) acting as agents of the Corporation to arrange for the sale of the Offered Units;
(b) assisting in the preparation of the Prospectus Supplements, the Canadian Warrant Supplement and the U.S. Warrant Supplement together with any documents supplemental thereto or any amending or supplementary prospectus or other supplemental documents or any similar documents (the “Supplementary Material”) required to execute a certificate page in respect be filed under the legislation of the Preliminary Warrant Prospectus or Qualifying Jurisdictions and under the Final Warrant ProspectusU.S. Securities Laws, and performing administrative work in connection with these matters;
(c) advising the Corporation with respect to the Offering;
(d) distributing the Offered Units to the public both directly and through other registered dealers and brokers; and
(e) all other services arising out of the agreement resulting from the Corporation’s acceptance of this offer.
Appears in 1 contract
Samples: Agency Agreement (Veris Gold Corp.)
Nature of the Transaction. 2.1 (a) Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Units Initial Shares of the Corporation, and by acceptance of this Agreement the Corporation agrees to sell to the Underwriters, and the Underwriters agree severally, in the respective percentages set forth in Section 17 of this Agreement, and not jointly, to purchase at the Closing Time of Closing on the Closing Date, all, but not less than all, of the UnitsInitial Shares. In the event the Underwriters exercise their right pursuant to the Over-Allotment Option to purchase Additional Common the Over-Allotment Shares and/or Additional Warrants in whole or in part and at any time and from time to time up to 30 days after the Closing Date, the Corporation shall hereby agrees to sell to the Underwriters and the Underwriters shall agree severally, in the respective percentages set forth in Section 17 of this Agreement, and not jointly, to purchase that number of Additional Common Shares and/or Additional Warrants requested by the Underwriters pursuant to the notice delivered to the Corporation in accordance with Section 3.1, at the Time of Closing on the Over-Allotment Closing Date.
2.2 This offer is conditional upon, among other things, the Corporation obtaining a Passport Decision Document for the Final Prospectus from the Commissions in the Qualifying Jurisdictions, qualifying the distribution by the Corporation of the Units, the Over-Allotment Option and any Additional Common Shares and/or Additional Warrants to purchasers resident in each Qualifying Jurisdiction dated effective March 4, 2009, or such later date as the Lead Underwriters may agree, acting reasonably. The obligation of the Underwriters to purchase any Offered Securities shall, in addition to being subject to the other terms and conditions described herein, be conditional on the following steps having been taken within the time frames described below:
Option Closing Date (a) The Corporation shall file with the SEC, in form and substance satisfactory to the Underwriters, acting reasonably, and in accordance with the provisions of the U.S. Securities Act, an amendment to the Registration Statement which includes the Final Prospectus (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) (the “U.S. Final Prospectus”) as soon as possible on March 4, 2009 but in any event not later than one Business Day thereafter or such other date as the Lead Underwriters may agree acting reasonably;hereinafter defined).
(b) The Corporation shall, on or before March 5, 2009, file has prepared and filed the Canadian Shelf Prospectus with the Reviewing Authority a preliminary base shelf prospectus (the “Preliminary Warrant Prospectus”)Qualifying Authorities, under NI 44-102 relating to the Warrant Shares and use its best efforts to obtain the issuance by the Reviewing Authority of a receipt providing for the Preliminary Warrant Prospectus as soon as possible but in any event no later than one Business Day thereafter;offer and sale, from time to time, of up to U.S.$380,000,000 of, among other securities of the Company, Common Shares. The Principal Regulator has issued the Passport Receipt on behalf of the Qualifying Authorities.
(c) The Corporation shall file has also prepared and filed, or will file, with the SEC as soon as possible following pursuant to the filing of Canada/U.S. Multi-Jurisdictional Disclosure System adopted by the Preliminary Warrant Prospectus with Qualifying Authorities and the Reviewing Authority but in any event no later than one Business Day thereafterSEC, in accordance with the provisions of Registration Statement and the U.S. Securities Act, of a shelf registration statement (including documents incorporated by reference therein, as it Shelf Prospectus. The Corporation has been also prepared and may be further amended from time to time, the “Warrant Registration Statement”) on Form F-10 providing for the registration of the Warrant Shares under the U.S. Securities Act, which includes the Preliminary Warrant Prospectus (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) along with the filing filed with the SEC an Appointment of an appointment Agent for Service of an agent for service of process upon the Corporation Process and Undertaking on Form F-X in conjunction with at the time of the initial filing of such registration statement the Registration Statement (the “Warrant Form F-X”);. No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC, nor has any proceeding with respect thereto been instituted. The Corporation has fulfilled and complied with, to the reasonable satisfaction of the Underwriters, the U.S. Securities Laws required to be fulfilled or complied with by the Corporation in order to enable the Offered Shares to be distributed to the public in the United States.
(d) The Corporation shall file with the Reviewing Authority as soon as possible a final base shelf prospectus and supplement thereto in form and substance satisfactory agrees to pay to GMP, on behalf of the Underwriters, upon completion of the Offering the Underwriting Fee. The Underwriting Fee is payable at the Closing Time in consideration of the services to be rendered by the Underwriters in connection with the Offering, which services shall include:
(i) acting reasonablyas Underwriters of the Corporation to purchase the Initial Shares;
(ii) assisting in the preparation of the Prospectus Supplements together with any Supplementary Material required to be filed under the legislation of the Qualifying Provinces and under the U.S. Securities Laws, and performing administrative work in accordance connection with these matters;
(iii) assisting in the procedures set out preparation of the Registration Statement as required to be filed under the U.S. Securities Act and performing administrative work in NI 44-102 relating connection with these matters;
(iv) advising the Corporation with respect to the Warrant Offering;
(v) distributing the Offered Shares to the public both directly and through other registered dealers and brokers; and
(vi) all other services arising out of the “Final Warrant Prospectus”) and shall obtain a receipt agreement resulting from the Reviewing Authority Corporation’s acceptance of this offer.
(e) The Offered Shares to be issued and sold by the Corporation hereunder shall be duly and validly created and issued by the Corporation and, when issued and sold by the Corporation, such Common Shares shall have the rights, privileges, restrictions and conditions that conform in respect thereof on all material respects to the rights, privileges, restrictions and conditions set forth in the Registration Statement, the Shelf Prospectuses, the Prospectus Supplements and any Supplementary Materials, subject to such modifications or before the second Business Day changes (if any) prior to the Closing DateDate as may be agreed to in writing by the Corporation and the Underwriters. In addition, such Common Shares shall be issued in compliance with all provincial, federal and state securities laws, including, without limitation, Canadian Securities Laws and U.S. Securities Laws.
(f) The Distribution of the Offered Shares shall be qualified by the Canadian Shelf Prospectuses and under Canadian Securities Laws in the Qualifying Provinces and shall be registered under the U.S. Securities Act by the Registration Statement. The Corporation shall file with the Reviewing Authority within one Business Day Distribution of the issuance Offered Shares may also take place in such countries of a final receipt from the Reviewing Authority a prospectus supplement relating to the Warrant Shares (the “Canadian Warrant Supplement”). Reference to “Canadian Warrant Prospectus” herein shall mean the Final Warrant Prospectus for which a receipt has been obtained from the Reviewing Authority, including the documents incorporated Europe as determined appropriate by reference therein and prospectus supplement thereto, including the Canadian Warrant Supplement. The Corporation acknowledges and agrees that under no circumstances whatsoever shall the Underwriters be in accordance with applicable laws but provided that no prospectus, registration statement or similar document is required to execute a certificate page be filed in any such country.
(g) The Initial Shares shall be listed at the Closing Time on the TSX and the Amex, and the TSX and the Amex shall have approved, by the Closing Time, an additional listing application in respect of Initial Shares and the Preliminary Warrant Prospectus Over-Allotment Shares, if the Underwriters have provided notice of the exercise of the Over-Allotment Option in accordance with Section 3(a) prior to Closing.
(h) The Corporation agrees that the Underwriters will be permitted to appoint other registered dealers (or other dealers duly licensed in their respective jurisdictions) as their agents to assist in the Final Warrant Prospectus; andOffering and that the Underwriters may determine the remuneration payable to such other dealers appointed by them. Such remuneration shall be payable by the Underwriters. The Underwriters shall require and shall use their commercially reasonable efforts to ensure that such other dealers, if any, comply with the terms of this Agreement as applicable to the Underwriters.
(i) Each Underwriter covenants, represents and warrants to the Corporation that it will comply with the rules and policies of each of the Exchanges and with the Canadian Securities Laws of each Qualifying Province, the U.S. Securities Laws and the applicable laws of each other jurisdiction in which it acts as an underwriter for the Corporation or offers or sells the Offered Shares in connection with the Offering.
Appears in 1 contract
Samples: Underwriting Agreement (Banro Corp)
