Representations and Warranties and Covenants of the Company. The Company represents and warrants to the Investor and acknowledges that it is relying upon such representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants that: (a) the Company and each wholly-owned subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (each, a "Subsidiary") has been duly incorporated and organized and is validly existing under the laws of its jurisdiction of incorporation, has all requisite power and authority to carry on its business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the Company and its Subsidiaries, taken as a whole, and the Company has all requisite power and authority to carry out its obligations under the Indentures and this agreement; (b) except as has been publicly disclosed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole; (c) the Company has no subsidiaries other than the Subsidiaries. All the issued and outstanding shares in the capital of each Subsidiary have been validly allotted and issued and are outstanding as fully paid and non-assessable and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary; (d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary; (e) no consent, approval, permit, authorization, order of or filing with any court or governmental agency or body in Canada or the United States is required by the Company for the execution and delivery of and the performance by the Company of its obligations under the Indentures and this agreement, except as may be required in order to qualify or register the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges"); (f) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries; (g) the audited consolidated financial statements of the Company for the period ended December 31, 2001: (i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods; (ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended; (iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001; (iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and (v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries; (h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002: (i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods; (ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended; (iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended; (iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and (v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries; (i) at the Time of Closing, the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally valid and binding upon the Company and enforceable in accordance with its terms; (j) at the Time of Closing, all necessary corporate action will have been taken by the Company to authorize the issuance of the Convertible Notes and the Warrants issuable pursuant to this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and Warrants, respectively, and upon conversion or exercise of the Convertible Notes or Warrants, respectively, the underlying Common Shares will be validly issued, fully paid and non-assessable; (k) at the Time of Closing, the authorized capital of the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002; (l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement; (m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries; (n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Ontario, Quebec and Nova Scotia and has timely filed all forms and reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), required to be filed by it since it has become subject to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed; (o) the Company does not employ any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"). This representation is made in reliance upon and subject to the accuracy of the Investor's representation in Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor; (p) except as has been public disclosed by the Company, the Company and the Subsidiaries are conducting their respective businesses in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Company and its Subsidiaries. Except as has been public disclosed by the Company, the Company is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Company anticipates the Company or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses; (q) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants; (r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act; (s) the Company maintains a system of internal accounting controls sufficient, in the judgment of the Company's board of directors, to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 2 contracts
Samples: Subscription Agreement (Crystallex International Corp), Subscription Agreement (Crystallex International Corp)
Representations and Warranties and Covenants of the Company. The As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors that, other than as disclosed in any reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the Investor reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and acknowledges that it is relying upon such representations all exhibits and warranties in entering into this agreement appendices included therein and purchasing Convertible Notes financial statements, notes and Warrants that:schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”):
(a) the The Company and each wholly-owned its subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (eachare entities duly organized, a "Subsidiary") has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporationDelaware, has all and have the requisite power and authority to own or lease their properties and to carry on its their business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the being conducted. The Company and its Subsidiaries, taken subsidiary are each duly qualified as a whole, and the Company has all requisite power and authority foreign entity to carry out its obligations under the Indentures and this agreement;
do business (bwhere such concept exists) except as has been publicly disclosed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none in every jurisdiction (where such concept exists) in which its ownership or lease of property or the nature of the same contains any burdensome termbusiness conducted by it makes such qualification necessary, provision, condition except to the extent that the failure to be so qualified or limitation which has or be in good standing would not reasonably be expected to have a material adverse effect on the business, operations, or condition (financial or otherwise) of the Company and or its Subsidiaries subsidiary, taken as a whole;
(c) the . The Company has no subsidiaries other than the Subsidiaries. All the issued power, authority and outstanding shares in the capital of each Subsidiary have been validly allotted capacity to execute and issued and are outstanding as fully paid and non-assessable and no persondeliver this Agreement, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoeverto perform its obligations hereunder, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for to consummate the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no Exchange contemplated hereby. No consent, approval, permitorder or authorization of, authorizationor registration, order of declaration or filing with any court or governmental agency or body in Canada or the United States entity is required by on the part of the Company for or its subsidiary in connection with the execution execution, delivery and delivery of and the performance by the Company of its obligations under this Agreement and the Indentures and this agreementconsummation by the Company of the Exchange, except as may be required in order to qualify under any state or register federal securities laws or that may be made or obtained after the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges");Closing without penalty.
(fb) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have This Agreement has been duly authorized, executed and delivered by the Company and each shall be legally constitutes a legal, valid and binding upon obligation of the Company, enforceable against the Company and enforceable in accordance with its terms;, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”).
(jc) at This Agreement and consummation of the Time Exchange will not violate, conflict with or result in a breach of Closingor default under (i) the charter or bylaws of the Company, all necessary corporate action will have been taken (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or its subsidiary are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiary, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults as would not, individually or in the aggregate, materially impair the ability of the Company to authorize consummate the issuance of transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the Convertible Notes and the Warrants issuable pursuant to manner set forth in this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and Warrants, respectively, and upon conversion or exercise of the Convertible Notes or Warrants, respectivelyAgreement, the underlying Common Shares will (i) be validly issued, fully paid and non-assessable;
, (kii) at the Time be free and clear of Closingany Liens (as defined in Section 3(c) below), the authorized capital of the Company will consist of an unlimited number of Common Sharesoption, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002;
(l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before other adverse claim thereto, including claims or by rights under any governmental voting trust agreements, shareholder agreements or regulatory agency or board, domestic or foreign, other agreements to which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" party, and (iii) will not in default be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend and restrictions on transfer under Rule 144 promulgated under the Securities Act, provided that the Company is a former shell company as defined in Rule 144(i) of the Securities Act and must be in compliance with Rule 144(i) at the time of any resale.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NYSE, other than the filing with NYSE of a Listing of Additional Shares notification which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2022 to the date of British Columbiathis Agreement, Ontario, Quebec and Nova Scotia and the Company has timely filed all forms reports, schedules, forms, proxy statements, statements and reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other documents required to be filed by it since it has become subject with the SEC pursuant to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;
(o) the Company does not employ Exchange Act or timely filed notifications of late filings for any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery foregoing. As of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"). This representation is made in reliance upon and subject to the accuracy of the Investor's representation in Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor;
(p) except as has been public disclosed by the Companytheir respective dates, the Company and the Subsidiaries are conducting their respective businesses in compliance SEC Documents complied in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful the requirements of any governmental or regulatory bodies which are the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company and its Subsidiaries. Except as has been public disclosed shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed that would reasonably be expected to be brought into force by any governmental or regulatory authority which impede the Company anticipates the Company or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;
(q) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficient, in the judgment consummation of the Company's board of directors, to provide reasonable assurances that Exchange.
(i) transactions are executed in accordance with management's general The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or specific authorizations, (ii) transactions are recorded as transfer agent to be reasonably necessary to permit preparation complete the Exchange.
(j) From the date hereof until 30 days after the Closing Date, the Company agrees that it will not sell any shares of financial statements in conformity Common Stock pursuant to the Company’s purchase agreement with GAAP and to maintain asset accountabilityLincoln Park Capital Fund, LLC dated August 30, 2022.
(iiik) access to assets is permitted only in accordance with management's general On or specific authorization and (iv) before 9:00 a.m. Eastern on November 17, 2022, the recorded accountability of assets is compared Company shall file a Current Report on 8-K with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesSEC disclosing the material terms of the transactions contemplated hereunder.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. The Company represents and warrants to, and agrees with, the Purchaser that, except as otherwise disclosed in the Company's Annual Report on Form 10-K (the "Company Annual Report") most recently filed with the Securities and Exchange Commission (the "SEC") and all subsequently filed reports or documents filed prior to the Investor and acknowledges that it is relying upon such representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants that:date hereof (collectively with the Company Annual Report, the "Exchange Act Reports"):
(a) the Company and each wholly-owned subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (each, a "Subsidiary") has been duly incorporated and organized and is validly existing under the laws of its jurisdiction of incorporation, has all requisite power and authority to carry on its business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the Company and its Subsidiaries, taken as a wholeThe Private Placement Memorandum, and the Company has all requisite power and authority to carry out its obligations under the Indentures and this agreement;
(b) except as has been publicly disclosed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to Exchange Act Reports that have a material adverse effect on the Company and its Subsidiaries taken as a whole;
(c) the Company has no subsidiaries other than the Subsidiaries. All the issued and outstanding shares in the capital of each Subsidiary have been validly allotted and issued and are outstanding as fully paid and non-assessable and no person, firm or corporation has any agreement or optionbeen, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchasewill be, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no consent, approval, permit, authorization, order of or filing with any court or governmental agency or body in Canada or the United States is required filed by the Company for the execution and delivery of and the performance by the Company of its obligations under the Indentures and this agreement, except as may be required in order to qualify or register the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges");
(f) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision SEC or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally valid and binding upon the Company and enforceable in accordance with its terms;
(j) at the Time of Closing, all necessary corporate action will have been taken by the Company sent to authorize the issuance of the Convertible Notes and the Warrants issuable shareholders pursuant to this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and Warrants, respectively, and upon conversion or exercise of the Convertible Notes or Warrants, respectively, the underlying Common Shares will be validly issued, fully paid and non-assessable;
(k) at the Time of Closing, the authorized capital of the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002;
(l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Ontario, Quebec and Nova Scotia and has timely filed all forms and reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), required as of their respective dates and as of the Closing Date, do not and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading. Such documents, when filed by it since it has become subject with the SEC, as applicable did, or will, conform in all material respects to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed Exchange Act and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;the rules and regulations of the SEC thereunder.
(ob) the The Company does not employ any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion has no direct or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code indirect subsidiaries other than those subsidiaries (the "CodeSubsidiaries"). This representation is made in reliance upon and subject to the accuracy of the Investor's representation in ) listed on Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor;2 hereto.
(pc) except as has been public disclosed by the Company, Each of the Company and the Subsidiaries are conducting their respective businesses has been duly incorporated and each is validly existing as a corporation in compliance good standing under the laws of the jurisdiction in all which it is chartered or organized, is duly qualified to do business as a foreign corporation and each is in good standing under the laws of each jurisdiction where it owns or leases material respects with all applicable licensing and anti-pollution legislationproperties or conducts business, regulations except in such jurisdictions in which the failure to so qualify, in the aggregate, would not have a Material Adverse Effect. "Material Adverse Effect" as used in this Purchase Agreement shall mean a material adverse effect on (i) the business, operations, properties, assets, liabilities, net worth, or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements financial condition of any governmental or regulatory bodies which are applicable to the Company and its the Subsidiaries. Except , taken as has been public disclosed by the Companya whole, the Company is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Company anticipates the Company or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;
(q) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficient, in the judgment of the Company's board of directors, to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary the ability of the Company to permit preparation perform any of financial statements in conformity with GAAP and its obligations under the Transaction Documents, the Notes or the Warrants or to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) consummate the recorded accountability of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesTransactions.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. The As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors that, other than as disclosed in any reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the Investor reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and acknowledges that it is relying upon such representations all exhibits and warranties in entering into this agreement appendices included therein and purchasing Convertible Notes financial statements, notes and Warrants that:schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”):
(a) the The Company and each wholly-owned its subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (eachare entities duly organized, a "Subsidiary") has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporationDelaware, has all and have the requisite power and authority to own or lease their properties and to carry on its their business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the being conducted. The Company and its Subsidiaries, taken subsidiary are each duly qualified as a whole, and the Company has all requisite power and authority foreign entity to carry out its obligations under the Indentures and this agreement;
do business (bwhere such concept exists) except as has been publicly disclosed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none in every jurisdiction (where such concept exists) in which its ownership or lease of property or the nature of the same contains any burdensome termbusiness conducted by it makes such qualification necessary, provision, condition except to the extent that the failure to be so qualified or limitation which has or be in good standing would not reasonably be expected to have a material adverse effect on the business, operations, or condition (financial or otherwise) of the Company and or its Subsidiaries subsidiary, taken as a whole;
(c) the . The Company has no subsidiaries other than the Subsidiaries. All the issued power, authority and outstanding shares in the capital of each Subsidiary have been validly allotted capacity to execute and issued and are outstanding as fully paid and non-assessable and no persondeliver this Agreement, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoeverto perform its obligations hereunder, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for to consummate the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no Exchange contemplated hereby. No consent, approval, permitorder or authorization of, authorizationor registration, order of declaration or filing with any court or governmental agency or body in Canada or the United States entity is required by on the part of the Company for or its subsidiary in connection with the execution execution, delivery and delivery of and the performance by the Company of its obligations under this Agreement and the Indentures and this agreementconsummation by the Company of the Exchange, except as may be required in order to qualify under any state or register federal securities laws or that may be made or obtained after the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges");Closing without penalty.
(fb) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have This Agreement has been duly authorized, executed and delivered by the Company and each shall be legally constitutes a legal, valid and binding upon obligation of the Company, enforceable against the Company and enforceable in accordance with its terms;, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”).
(jc) at This Agreement and consummation of the Time Exchange will not violate, conflict with or result in a breach of Closingor default under (i) the charter or bylaws of the Company, all necessary corporate action will have been taken (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or its subsidiary are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiary, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults as would not, individually or in the aggregate, materially impair the ability of the Company to authorize consummate the issuance of transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the Convertible Notes and the Warrants issuable pursuant to manner set forth in this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and Warrants, respectively, and upon conversion or exercise of the Convertible Notes or Warrants, respectivelyAgreement, the underlying Common Shares will (i) be validly issued, fully paid and non-assessable;
, (kii) at the Time be free and clear of Closingany Liens (as defined in Section 3(c) below), the authorized capital of the Company will consist of an unlimited number of Common Sharesoption, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002;
(l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before other adverse claim thereto, including claims or by rights under any governmental voting trust agreements, shareholder agreements or regulatory agency or board, domestic or foreign, other agreements to which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" party, and (iii) will not in default be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend and restrictions on transfer under Rule 144 promulgated under the Securities Act, provided that the Company is a former shell company as defined in Rule 144(i) of the Securities Act and must be in compliance with Rule 144(i) at the time of any resale.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NYSE, other than the filing with NYSE of a Listing of Additional Shares notification which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2022 to the date of British Columbiathis Agreement, Ontario, Quebec and Nova Scotia and the Company has timely filed all forms reports, schedules, forms, proxy statements, statements and reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other documents required to be filed by it since it has become subject with the SEC pursuant to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;
(o) the Company does not employ Exchange Act or timely filed notifications of late filings for any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery foregoing. As of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"). This representation is made in reliance upon and subject to the accuracy of the Investor's representation in Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor;
(p) except as has been public disclosed by the Companytheir respective dates, the Company and the Subsidiaries are conducting their respective businesses in compliance SEC Documents complied in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful the requirements of any governmental or regulatory bodies which are the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company and its Subsidiaries. Except as has been public disclosed shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed that would reasonably be expected to be brought into force by any governmental or regulatory authority which impede the Company anticipates the Company or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;
(q) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficient, in the judgment consummation of the Company's board of directors, to provide reasonable assurances that Exchange.
(i) transactions are executed in accordance with management's general The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or specific authorizations, (ii) transactions are recorded as transfer agent to be reasonably necessary to permit preparation complete the Exchange.
(j) On or before 9:00 a.m. Eastern on March 13, 2023, the Company shall issue a press release or file a Form 8-K (or Form 10-K in lieu thereof) disclosing the material terms of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencestransactions contemplated hereunder.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. The As of the date hereof and the Closing Date, the Company represents and warrants to the Investor and acknowledges that it is relying upon such representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants that:
(a) the Company and each wholly-owned subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (each, a "Subsidiary") has been duly incorporated and organized and is validly existing under the laws of its jurisdiction of incorporation, has all requisite power and authority to carry on its business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the Company and its Subsidiaries, taken as a wholeto, and the Company has all requisite power and authority to carry out its obligations under the Indentures and this agreement;
(b) except as has been publicly disclosed by the Companycovenants with, the Company Exchanging Investors that, other than as disclosed in any reports, schedules, forms, proxy statements, statements and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business other documents required to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole;
(c) the Company has no subsidiaries other than the Subsidiaries. All the issued and outstanding shares in the capital of each Subsidiary have been validly allotted and issued and are outstanding as fully paid and non-assessable and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no consent, approval, permit, authorization, order of or filing with any court or governmental agency or body in Canada or the United States is required filed by the Company for with the execution Securities and delivery of and the performance by the Company of its obligations under the Indentures and this agreement, except as may be required in order to qualify or register the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange Commission (the "TSE"“SEC”) and the AMEX (collectively, the "Exchanges");
(f) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable pursuant to the Company; (ii) the securities legislation reporting requirements of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally valid and binding upon the Company and enforceable in accordance with its terms;
(j) at the Time of Closing, all necessary corporate action will have been taken by the Company to authorize the issuance of the Convertible Notes and the Warrants issuable pursuant to this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and Warrants, respectively, and upon conversion or exercise of the Convertible Notes or Warrants, respectively, the underlying Common Shares will be validly issued, fully paid and non-assessable;
(k) at the Time of Closing, the authorized capital of the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002;
(l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Ontario, Quebec and Nova Scotia and has timely filed all forms and reports under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed or furnished prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein, the “SEC Documents”):
(a) The Company and each of its subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the aggregate, (i) have a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement or (iii) result in the delisting of shares of Common Stock from Nasdaq. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby; and all action required to be taken for the due and proper authorization, execution and delivery by it of the Agreement and the consummation by it of the Exchange contemplated thereby has been duly and validly taken.
(b) This Agreement has been duly authorized, executed and delivered by the Company.
(c) This Agreement and consummation of the Exchange will not (i) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (ii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority (including, without limitation, the rules and regulations of the Nasdaq), in each case, applicable to the Company, except for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect..
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend and will not be subject to restrictions on transfer under Rule 144 promulgated under the Securities Act.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares notification (the “LAS”) which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2022 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it since it has become subject with the SEC pursuant to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;
(o) the Company does not employ Exchange Act or timely filed notifications of late filings for any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery foregoing. As of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"). This representation is made in reliance upon and subject to the accuracy of the Investor's representation in Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor;
(p) except as has been public disclosed by the Companytheir respective dates, the Company and the Subsidiaries are conducting their respective businesses in compliance SEC Documents complied in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful the requirements of any governmental or regulatory bodies which are the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company and its Subsidiaries. Except as has been public disclosed shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against or affecting the Company is not aware that would reasonably be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of any such legislation, regulations, by-laws the Exchange contemplated in this Agreement or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the performance of the Company anticipates the Company or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;of its obligations hereunder.
(q) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficient, in the judgment of the Company's board of directors, to provide reasonable assurances that (i) transactions are executed in accordance with management's general The Company agrees that it shall, upon request, use its reasonable efforts to execute and deliver any additional documents reasonably deemed by the Trustee or specific authorizations, (ii) transactions are recorded as Transfer Agent to be reasonably necessary to permit preparation complete the Exchange.
(j) The Company hereby agrees to publicly disclose on or before 9:00 a.m., New York City time, on the first business day after the date hereof, the exchange of financial statements the Exchanged Notes as contemplated by this Agreement in conformity with GAAP a press release or Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such press release or Current Report on Form 8-K will disclose all confidential information (as described in the confirmatory wall-crossing email received by the Investor from the Placement Agent) communicated by the Company to maintain asset accountability, (iii) access to assets is permitted only the Investor or any Exchanging Investor in accordance with management's general or specific authorization and (iv) the recorded accountability of assets is compared connection with the existing assets Exchange to the extent the Company believes, at reasonable intervals and appropriate action is taken its sole discretion, such confidential information constitutes material non-public information, if any, with respect to any differencesthe Exchange or otherwise.
Appears in 1 contract
Samples: Exchange Agreement (Intercept Pharmaceuticals, Inc.)
Representations and Warranties and Covenants of the Company. The As of the date hereof and the Closing Date, the Company represents and warrants to to, and covenants with, the Investor Exchanging Investors, and acknowledges that it is relying upon all such covenants, representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants shall survive the Closing, that:
(a) the The Company and each wholly-owned subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (eachits subsidiaries are entities duly organized, a "Subsidiary") has been duly incorporated and organized and is validly existing and in good standing under the laws of its the jurisdiction of incorporationin which each is formed, has all and have the requisite power and authority to own their properties and to carry on its their business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assetsbeing conducted, except where any failure as would not have a material adverse effect on the Company and its Subsidiaries, taken as a whole, and the Company has all requisite power and authority to carry out its obligations under the Indentures and this agreement;
(b) except as has been publicly disclosed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company and or its Subsidiaries subsidiaries, taken as a whole;
(c) , or would not individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement (a “Material Adverse Effect”). The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. The Company has no subsidiaries other than the Subsidiaries. All the issued power, authority and outstanding shares in the capital of each Subsidiary have been validly allotted capacity to execute and issued and are outstanding as fully paid and non-assessable and no persondeliver this Agreement, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoeverto perform its obligations hereunder, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for to consummate the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no Exchange contemplated hereby. No consent, approval, permitorder or authorization of, authorizationor registration, order of declaration or filing with any court or governmental agency or body in Canada or the United States entity is required by on the part of the Company for or any of its subsidiaries in connection with the execution execution, delivery and delivery of and the performance by the Company of its obligations under this Agreement and the Indentures and this agreementconsummation by the Company of the Exchange, except as may be required in order to qualify under any state or register federal securities laws or that may be obtained after the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges");Closing without penalty.
(fb) none The execution, delivery and performance of the execution this Agreement has been duly executed and delivery of the Indentures and this agreement, the performance delivered by the Company of its obligations thereunderand constitutes a legal, the issuance valid and binding obligation of the Convertible Notes Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and the Warrants (b) general principles of equity, whether such enforceability is considered in a proceeding at law or the issuance of Common Shares on the conversion in equity. This Agreement and consummation of the Convertible Notes or exercise of the Warrants Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) any statutethe charter, rule bylaws or regulation applicable to other organizational documents of the Company; , (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order agreement or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document instrument to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries assets or the property subsidiaries are bound, or assets of (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company or and its Subsidiary whichsubsidiaries, except in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
clauses (ii) present fairly the consolidated assetsor (iii), liabilities and financial condition of the Company as at December 31where such violations, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;conflicts, breaches or defaults would not be reasonably expected to have a Material Adverse Effect.
(iiic) are When delivered to the applicable Exchanging Investor pursuant to the Exchange in accordance with the books and records terms of this Agreement, the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
Shares will (i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally valid and binding upon the Company and enforceable in accordance with its terms;
(j) at the Time of Closing, all necessary corporate action will have been taken by the Company to authorize the issuance of the Convertible Notes and the Warrants issuable pursuant to this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and Warrants, respectively, and upon conversion or exercise of the Convertible Notes or Warrants, respectively, the underlying Common Shares will be validly issued, fully paid and non-assessable;, (ii) be free and clear of any Liens (as defined in Section 2(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act, (b) will be issued in unrestricted CUSIP No. 094235 108, and (c) will be issued in compliance with all applicable state and federal laws, and at the Closing, be free of any restrictive legend and any restrictions on resale by such Exchanging Investor pursuant to Rule 144 promulgated under the Securities Act.
(kd) at At the Time of Closing, the authorized capital of Common Stock shall be listed on NASDAQ and the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at shall have been approved for listing on NASDAQ in accordance with the close of business on September 24, 2002;applicable rules thereof.
(le) except as have been publicly disclosedFrom January 1, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years 2023 to the date hereof to the extent such taxes have become due or have been alleged to be due; of this Agreement, the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Ontario, Quebec and Nova Scotia and has timely filed all forms reports, schedules, forms, proxy statements, statements and reports under other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"), required to be ”) or timely filed by it since it has become subject notifications of late filings for any of the foregoing (all of the foregoing filed prior to the periodic reporting requirements thereunder date hereof and there is no material change in all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;
(o) the Company does not employ any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"“SEC Documents”). This representation is made in reliance upon and subject to the accuracy As of the Investor's representation in Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor;
(p) except as has been public disclosed by the Companytheir respective dates, the Company and the Subsidiaries are conducting their respective businesses in compliance SEC Documents complied in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful the requirements of any governmental or regulatory bodies which are the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements of Regulations S-X and have been prepared in accordance with U.S. generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its Subsidiaries. Except operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
(f) At or prior to 9:00 a.m., New York City time, on the first business day after the date hereof, the Company shall file with the SEC a current report on Form 8-K announcing the Exchange, which current report the Company acknowledges and agrees will disclose all confidential information (as has been described in the Wall Cross Email (as defined below)) to the extent the Company believes such confidential information constitutes material non-public disclosed information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor in connection with the Exchange.
(g) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(h) No statement or printed material which is contrary to the publicly available filings and submissions made by the Company with the SEC under the Exchange Act, or any other documents and agreements used in connection with the Exchange has been made or given to the Investor by or on behalf of the Company.
(i) No Event of Default (as defined in the Indenture) has occurred that is continuing as of the date hereof.
(j) The Company understands that the Investor and each Exchanging Investor will rely upon the truth and accuracy of the foregoing representations, warranties and SEC Documents and covenants and agrees that if any of the representations and warranties deemed to have been made by it are no longer accurate, the Company shall promptly notify the Investor in writing prior to the Closing. The Company understands that, unless the Company notifies the Investor in writing to the contrary before the Closing, each of the Company’s representations and warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.
(k) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Investor to be reasonably necessary to complete the Exchange.
(l) The Company is not aware and, after giving effect to the Exchange contemplated by this Agreement, will not be required to register as an “investment company” within the meaning of any such legislationthe Investment Company Act of 1940, regulationsas amended, by-laws or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which and the Company anticipates rules and regulations of the Company or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;SEC thereunder.
(qm) in addition to Common Shares issued The Company is not and except for has not been a “United States real property holding corporation” within the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise meaning of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(rSection 897(c) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficient, in the judgment of the Company's board of directors, to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) Code within the recorded accountability of assets is compared with 5-year period ending on the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesClosing Date.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. The As of the date hereof and the Closing Date, the Company represents and warrants to to, and covenants with, the Investor Exchanging Investors, and acknowledges that it is relying upon all such covenants, representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants shall survive the Closing, that:
(a) the The Company and each whollyof its subsidiaries set forth in Schedule I hereto, which subsidiaries constitute “Significant Subsidiaries” as defined under Regulation S-owned subsidiary X promulgated under the Securities Act of 1933, as amended ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (each“Significant Subsidiaries”), a "Subsidiary") has been are entities duly incorporated and organized and is organized, validly existing and in good standing under the laws of its the jurisdiction of incorporationin which each is formed, has all and have the requisite power and authority to own their properties and to carry on its their business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assetsbeing conducted, except where any failure as would not have a material adverse effect on not, individually or in the Company and its Subsidiariesaggregate, taken as a whole, and the Company has all requisite power and authority to carry out its obligations under the Indentures and this agreement;
(b) except as has been publicly disclosed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole;
(c) the Company has no subsidiaries other than the Subsidiaries. All the issued and outstanding shares in the capital of each Subsidiary have been validly allotted and issued and are outstanding as fully paid and non-assessable and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no consent, approval, permit, authorization, order of or filing with any court or governmental agency or body in Canada or the United States is required by the Company for the execution and delivery of and the performance by the Company of its obligations under the Indentures and this agreement, except as may be required in order to qualify or register the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges");
(f) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally valid and binding upon the Company and enforceable in accordance with its terms;
(j) at the Time of Closing, all necessary corporate action will have been taken by the Company to authorize the issuance of the Convertible Notes and the Warrants issuable pursuant to this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and Warrants, respectively, and upon conversion or exercise of the Convertible Notes or Warrants, respectively, the underlying Common Shares will be validly issued, fully paid and non-assessable;
(k) at the Time of Closing, the authorized capital of the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002;
(l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business), propertiesearnings, assets, capital, net worth, results of operations business affairs or business prospects of the Company or its subsidiaries, considered as one enterprise (a “Material Adverse Effect”). The Company and each of its SubsidiariesSignificant Subsidiaries is duly qualified to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, taken as except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, reasonably be expected to have a wholeMaterial Adverse Effect. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or which questions registration, declaration or filing with any governmental entity is required on the validity part of the Company or any actions taken or to be taken of its subsidiaries in connection with the execution, delivery and performance by the Company pursuant of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in connection equity. This Agreement and consummation of the Exchange will not violate, conflict with this agreement;
or result in a breach of or default under (mi) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its Subsidiaries Significant Subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have timely filed all necessary tax returns a Material Adverse Effect and notices would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(c) When delivered to the applicable Exchanging Investor pursuant to the Exchange in accordance with the terms of this Agreement, the Shares, assuming the truth and have accuracy of the representations and warranties and compliance with the covenants of the Investor herein, will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties and compliance with the covenants of the Investor hereunder, the Shares (a) will be issued in the Exchange exempt from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act, (b) will be issued in CUSIP No. V0000X000, and (c) will be issued in compliance with all applicable taxes state and federal laws, and at the Closing, be free of whatever nature any restrictive legend and any restrictions on resale by such Exchanging Investor pursuant to Rule 144 promulgated under the Securities Act.
(d) At the Closing, the Shares shall have been approved for all tax years listing on the NYSE in accordance with the applicable rules thereof.
(e) From January 1, 2024 to the date hereof to the extent such taxes have become due or have been alleged to be due; of this Agreement, the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Ontario, Quebec and Nova Scotia and has timely filed all forms reports, schedules, forms, proxy statements, statements and reports under other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"), required to be ”) or timely filed by it since it has become subject notifications of late filings for any of the foregoing (all of the foregoing filed prior to the periodic reporting requirements thereunder date hereof and there is no material change in all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;
(o) the Company does not employ any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"“SEC Documents”). This representation is made in reliance upon and subject to the accuracy As of the Investor's representation in Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor;
(p) except as has been public disclosed by the Companytheir respective dates, the Company and the Subsidiaries are conducting their respective businesses in compliance SEC Documents complied in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful the requirements of any governmental or regulatory bodies which are the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements of Regulations S-X and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries. Except subsidiaries, taken as has been public disclosed by a whole, as of the dates shown (subject, in the case of unaudited statements, to normal year-end audit adjustments).
(f) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to materially and adversely impede the consummation of the Exchange.
(g) No statement or printed material which is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed contrary to be brought into force the publicly available filings and submissions made by any governmental or regulatory authority which the Company anticipates with the Company SEC under the Exchange Act, or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;
(q) other documents and agreements used in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance connection with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(r) Exchange has been made or given to the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficient, in the judgment Investor by or on behalf of the Company's board of directors.
(h) The Company agrees that it shall, upon request, use its reasonable efforts to provide reasonable assurances that (i) transactions are executed in accordance with management's general execute and deliver any additional documents reasonably deemed by the Trustee or specific authorizations, (ii) transactions are recorded as the transfer agent to be reasonably necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) complete the recorded accountability of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesExchange.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. The As of the date hereof and as of the Closing, the Company represents and warrants to to, and covenants with, the Investor and acknowledges that it is relying upon such representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants Exchanging Investors that:
(a) the The Company and each wholly-owned subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (each, a "Subsidiary") has been duly incorporated and organized and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has all requisite the corporate power and authority to carry on its business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on to conduct its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the Company and its Subsidiaries, taken as a whole, and the it is currently being conducted.
(b) The Company has all requisite full power and authority to carry out its enter into this Agreement and perform all obligations under the Indentures and this agreement;
(b) except as has been publicly disclosed required to be performed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole;hereunder.
(c) the Company This Agreement has no subsidiaries other than the Subsidiaries. All the issued and outstanding shares in the capital of each Subsidiary have been validly allotted and issued and are outstanding as fully paid and non-assessable and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no consent, approval, permit, authorization, order of or filing with any court or governmental agency or body in Canada or the United States is required by the Company for the execution and delivery of and the performance by the Company of its obligations under the Indentures and this agreement, except as may be required in order to qualify or register the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges");
(f) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally constitutes a legal, valid and binding upon obligation of the Company, enforceable against the Company and enforceable in accordance with its terms;, except that such enforcement may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(jd) at the Time The execution of Closing, all necessary corporate action will have been taken this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (i) does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NASDAQ, other than the filing with NASDAQ of a Listing of Additional Shares notification (the “LAS”) which the Company will so file prior to authorize the issuance of Shares included in the Convertible Notes and Exchange Consideration on the Warrants issuable pursuant to this transaction and to allotClosing Date), reserve and authorize or court, or body or arbitrator having jurisdiction over the issuance Company (except as may be required under the securities or Blue Sky laws of the underlying Common Shares which are issuable upon various states); (ii) does not and will not constitute or result in a breach, violation or default under any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, governmental authority, arbitrator, mediator or similar body on the due conversion or exercise part of the Convertible Notes and Warrants, respectivelyCompany or cause the acceleration or termination of any obligation or right of the Company, and upon conversion (iii) does not and will not constitute or exercise result in a breach, violation or default under the Company’s Certificate of Incorporation or by-laws, except in the case of clause (ii), where such violations, conflicts, breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a have a material adverse effect on the business, properties, financial position, stockholders’ equity, or results of operations of the Convertible Notes Company and its subsidiaries taken as a whole (a “Material Adverse Effect”) or Warrantsprevent or materially interfere with consummation of the transactions contemplated by this Agreement.
(e) The Shares have been duly reserved for issuance and, respectivelywhen issued, delivered and paid for in the underlying Common Shares manner set forth in this Agreement, will be validly issued, fully paid and non-assessable;
(k) at the Time of Closing, the authorized capital of the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002;
(l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Ontario, Quebec and Nova Scotia and has timely filed all forms and reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), required to be filed by it since it has become subject to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;
(o) the Company does not employ any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery issuance of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common such Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is be subject to the prohibitions of section 406(aany preemptive or similar rights, other than any rights that have been complied with or waived.
(f) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"). This representation is made in reliance upon and subject to Assuming the accuracy of the Investor's representation representations and warranties of the Investor set forth in Schedule "C" this Agreement, the issuance of the Shares pursuant to this Agreement are exempt from the registration requirements of the Securities Act and the Shares will not be subject to restrictions on transfer under the Securities Act (and will not have any restrictive legends on such certificates or book-entry notations representing such Shares).
(g) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release; provided that if the Exchange does not take place no press release will be required. The Company hereby acknowledges and agrees that any press release will disclose all confidential information to the sources extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange.
(h) The Company is responsible for paying all of its fees and expenses, the fees and expenses of its advisors, transfer agent, registrar and other representatives, if any, of the funds used to pay the purchase price transactions contemplated by this Agreement; provided that Investor (for itself and on behalf of the Convertible Notes Exchanging Investors) is responsible for any applicable transfer taxes.
(i) The Company will, upon request, execute and Warrants purchased deliver any additional documents deemed by the Trustee or the transfer agent to be purchased reasonably necessary to complete the transactions contemplated by the Investor;this Agreement.
(pj) except as has been public disclosed by the Company, the The Company and each of its subsidiaries within the Subsidiaries meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act (“subsidiaries”) have been duly organized and are conducting validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in compliance in all material respects with all applicable licensing and anti-pollution legislationwhich they are engaged, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to except where the Company and its Subsidiaries. Except as has been public disclosed by the Company, the Company is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed failure to be brought into force by any governmental so qualified or regulatory have such power or authority which the Company anticipates the Company would not, individually or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;
(q) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficientaggregate, in the judgment of the Company's board of directors, to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorizationshave a Material Adverse Effect, (ii) prevent or materially interfere with consummation of the transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountabilitycontemplated by this Agreement, or (iii) access to assets is permitted only result in accordance with management's general or specific authorization and (iv) the recorded accountability delisting of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesShares from NASDAQ.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. The Company represents and warrants to the Investor and acknowledges that it is relying upon such representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants that:
(a) the Company and each wholly-owned subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (each, a "SubsidiarySUBSIDIARY") has been duly incorporated and organized and is validly existing under the laws of its jurisdiction of incorporation, has all requisite power and authority to carry on its business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the Company and its Subsidiaries, taken as a whole, and the Company has all requisite power and authority to carry out its obligations under the Indentures and this agreement;
(b) except as has been publicly disclosed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole;
(c) the Company has no subsidiaries other than the Subsidiaries. All the issued and outstanding shares in the capital of each Subsidiary have been validly allotted and issued and are outstanding as fully paid and non-assessable and except as publicly disclosed or as otherwise disclosed to the Investor (collectively the "PERMITTED TRANSACTIONS"), no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and except in connection with the Permitted Transactions, no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no consent, approval, permit, authorization, order of or filing with any court or governmental agency or body in Canada or the United States is required by the Company for the execution and delivery of and the performance by the Company of its obligations under the Indentures and this agreement, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia, Alberta, Quebec and Nova Scotia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain, and except as may be required in order to qualify or register the Common Shares issuable upon conversion of the Convertible Notes and/or and the exercise of the Warrants under the securities legislation laws and rules and regulations of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") TSX and the AMEX (collectively, the "ExchangesEXCHANGES");
(f) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or the exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 20012002, as amended and restated:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 2002 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 20012002;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30March 31, 20022003, as amended and restated:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time time of Closingclosing of the transactions contemplated hereby on the Closing Date (the "TIME OF CLOSING"), the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally valid and binding upon the Company and enforceable in accordance with its terms;
(j) at the Time of Closing, all necessary corporate action will have been taken by the Company to authorize the issuance of the Convertible Notes and the Warrants issuable pursuant to this transaction and to allot, reserve and authorize the issuance of the underlying Common Shares which are issuable upon the due conversion or exercise of the Convertible Notes and exercise of the Warrants, respectively, and upon conversion or exercise of the Convertible Notes or and exercise of the Warrants, respectively, the underlying Common Shares will be validly issued, fully paid and non-assessable;
(k) at the Time of Closing, the authorized capital of the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 112,170,673 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24August 19, 20022003;
(l) except as have been publicly disclosed, to the best of the knowledge and belief of the Company, there are no actions, suits, proceedings, investigations or inquiries pending against or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Alberta, Ontario, Quebec and Nova Scotia and and, with the exception of the most recently filed Form 20-F of the Company, has timely filed all forms and reports under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT"), required to be filed by it since it has become subject to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30March 31, 2002 2003 which has not subsequently been disclosed;
(o) the Company does not employ any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"). This representation is made in reliance upon and subject to the accuracy of the Investor's representation in Schedule "C" as to the sources of the funds used to pay the purchase price of the Convertible Notes and Warrants purchased or to be purchased by the Investor;
(p) except as has been public publicly disclosed by the Company, the Company and the Subsidiaries are conducting their respective businesses in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Company and its Subsidiaries. Except as has been public publicly disclosed by the Company, the Company is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Company anticipates the Company or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;
(qp) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 82,254,020 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;; and
(r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(sq) the Company maintains a system of internal accounting controls sufficient, in the judgment of the Company's board of directors, to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Samples: Subscription Agreement (Crystallex International Corp)
Representations and Warranties and Covenants of the Company. The As of the date hereof and as of the Closing, the Company represents and warrants to to, and covenants with, the Investor and acknowledges that it is relying upon such representations and warranties in entering into this agreement and purchasing Convertible Notes and Warrants Exchanging Investors that:
(a) the The Company and each wholly-owned subsidiary ("subsidiary" having the meaning attributed to such term in the Canada Business Corporations Act) of the Company (each, a "Subsidiary") has been duly incorporated and organized and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has all requisite the corporate power and authority to carry on its business as now conducted and to own, lease and operate its properties and assets in each of the jurisdictions in which it carries on to conduct its business or owns, leases or operates its properties or assets, except where any failure would not have a material adverse effect on the Company and its Subsidiaries, taken as a whole, and the it is currently being conducted.
(b) The Company has all requisite full power and authority to carry out its enter into this Agreement and perform all obligations under the Indentures and this agreement;
(b) except as has been publicly disclosed required to be performed by the Company, the Company and each Subsidiary has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated, and all such licences, registrations and qualifications are valid and subsisting and in good standing and none of the same contains any burdensome term, provision, condition or limitation which has or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole;hereunder.
(c) the Company This Agreement has no subsidiaries other than the Subsidiaries. All the issued and outstanding shares in the capital of each Subsidiary have been validly allotted and issued and are outstanding as fully paid and non-assessable and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase, subscription or issuance of any unissued shares, securities or warrants of any Subsidiary;
(d) except as has been publicly disclosed by the Company, the Company is the direct or indirect beneficial owner of all the issued and outstanding securities in the capital of each Subsidiary, in each case free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, and no person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement (including convertible securities and warrants) for the purchase from the Company of any interest in any of the issued and outstanding securities in the capital of any Subsidiary;
(e) no consent, approval, permit, authorization, order of or filing with any court or governmental agency or body in Canada or the United States is required by the Company for the execution and delivery of and the performance by the Company of its obligations under the Indentures and this agreement, except as may be required in order to qualify or register the Common Shares issuable upon conversion of the Convertible Notes and/or exercise of the Warrants under the securities legislation of the United States and the by-laws, rules and regulations of The Toronto Stock Exchange (the "TSE") and the AMEX (collectively, the "Exchanges");
(f) none of the execution and delivery of the Indentures and this agreement, the performance by the Company of its obligations thereunder, the issuance of the Convertible Notes and the Warrants or the issuance of Common Shares on the conversion of the Convertible Notes or exercise of the Warrants will conflict with or result in a breach of (i) any statute, rule or regulation applicable to the Company; (ii) the securities legislation of the United States and the by-laws, rules and regulations of the Exchanges, except any consent, approval, permit, authorization, order or filing required under the securities legislation of Ontario, British Columbia or the United States and the by-laws, rules and regulations of the Exchanges which the Company is required hereunder to use its best efforts to obtain; (iii) the constating documents, by-laws or resolutions of the Company which are in effect at the date hereof; (iv) any material contract, agreement, or other document to which the Company or a Subsidiary is a party or by which the Company or a Subsidiary is bound; or (v) any judgment, decree or order binding the Company or any of its Subsidiaries or the property or assets of the Company or its Subsidiary which, in the case of paragraphs (i), (iv) and (v), may have a material adverse effect on the Company or its Subsidiaries;
(g) the audited consolidated financial statements of the Company for the period ended December 31, 2001:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated assets, liabilities and financial condition of the Company as at December 31, 2001 and the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at December 31, 2001;
(iv) contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(h) the unaudited consolidated financial statements of the Company for the period ended June 30, 2002:
(i) have been prepared in all material respects in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) present fairly the consolidated results of its operations and the changes in its financial position for the period then ended;
(iii) are in accordance with the books and records of the Company and its Subsidiaries as at the period then ended;
(iv) contain and reflect all necessary adjustments for a fair presentation of the results of operations and the financial condition of the business of the Company on a consolidated basis for the period covered thereby; and
(v) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Company and its Subsidiaries;
(i) at the Time of Closing, the Indentures and this agreement shall have been duly authorized, executed and delivered by the Company and each shall be legally constitutes a legal, valid and binding upon obligation of the Company, enforceable against the Company and enforceable in accordance with its terms;, except that such enforcement may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(jd) at the Time The execution of Closing, all necessary corporate action will have been taken this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (i) does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NASDAQ, other than the filing with NASDAQ of a Listing of Additional Shares notification (the “LAS”) which the Company will so file prior to authorize the issuance of Shares included in the Convertible Notes and Exchange Consideration on the Warrants issuable pursuant to this transaction and to allotClosing Date), reserve and authorize or court, or body or arbitrator having jurisdiction over the issuance Company (except as may be required under the securities or Blue Sky laws of the underlying Common Shares which are issuable upon various states); (ii) does not and will not constitute or result in a breach, violation or default under any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, governmental authority, arbitrator, mediator or similar body on the due conversion or exercise part of the Convertible Notes and Warrants, respectivelyCompany or cause the acceleration or termination of any obligation or right of the Company, and upon conversion (iii) does not and will not constitute or exercise result in a breach, violation or default under the Company’s Certificate of Incorporation or by-laws, except in the case of clause (ii), where such violations, conflicts, breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a have a material adverse effect on the business, properties, financial position, stockholders’ equity, or results of operations of the Convertible Notes Company and its subsidiaries taken as a whole (a “Material Adverse Effect”) or Warrantsprevent or materially interfere with consummation of the transactions contemplated by this Agreement.
(e) The Shares have been duly reserved for issuance and, respectivelywhen issued, delivered and paid for in the underlying Common Shares manner set forth in this Agreement, will be validly issued, fully paid and non-assessable;
(k) at the Time of Closing, the authorized capital of the Company will consist of an unlimited number of Common Shares, an unlimited number of Class A Preference Shares and an unlimited number of Class B Preference Shares, of which 87,454,976 Common Shares and no Preference Shares were issued and outstanding as fully paid and non-assessable as at the close of business on September 24, 2002;
(l) except as have been publicly disclosed, there are no actions, suits, proceedings, investigations or inquiries pending or, to the best of the knowledge, information and belief of the Company, threatened against or affecting the Company (or any Subsidiary) or any of their properties or assets at law or in equity or before or by any governmental or regulatory agency or board, domestic or foreign, which may, in any way, have a material adverse effect on the condition (financial or otherwise) of the business, properties, assets, capital, net worth, results of operations or business prospects of the Company and its Subsidiaries, taken as a whole, or which questions the validity of any actions taken or to be taken by the Company pursuant to or in connection with this agreement;
(m) the Company and its Subsidiaries have timely filed all necessary tax returns and notices and have paid all applicable taxes of whatever nature for all tax years to the date hereof to the extent such taxes have become due or have been alleged to be due; the Company is not aware of any material tax deficiencies or material interest or penalties accrued or accruing, or alleged to be accrued or accruing, thereon with respect to itself or any of its Subsidiaries;
(n) the Company is a "reporting issuer" not in default under the securities laws of British Columbia, Ontario, Quebec and Nova Scotia and has timely filed all forms and reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), required to be filed by it since it has become subject to the periodic reporting requirements thereunder and there is no material change in the affairs of the Company which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since June 30, 2002 which has not subsequently been disclosed;
(o) the Company does not employ any person such as to subject the Company to any potential liability under the Employee Retirement Income Security Act of 1974, as amended, of the United States ("ERISA"), and the execution and delivery issuance of the Indentures and this Agreement and the issuance and sale of the Convertible Notes and Warrants and the issue of the underlying Common such Shares issuable upon conversion or exercise of the Convertible Notes and Warrants respectively, hereunder and under the Indentures will not involve any non-exempt transaction that is be subject to the prohibitions of section 406(aany preemptive or similar rights, other than any rights that have been complied with or waived.
(f) of ERISA and in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the U.S. Internal Revenue Code (the "Code"). This representation is made in reliance upon and subject to Assuming the accuracy of the Investor's representation representations and warranties of the Investor set forth in Schedule "C" this Agreement, the issuance of the Shares pursuant to this Agreement are exempt from the registration requirements of the Securities Act and the Shares will not be subject to restrictions on transfer under the Securities Act (and will not have any restrictive legends on such certificates or book‑entry notations representing such Shares).
(g) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release; provided that if the Exchange does not take place no press release will be required. The Company hereby acknowledges and agrees that any press release will disclose all confidential information to the sources extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange.
(h) The Company is responsible for paying all of its fees and expenses, the fees and expenses of its advisors, transfer agent, registrar and other representatives, if any, of the funds used to pay the purchase price transactions contemplated by this Agreement; provided that Investor (for itself and on behalf of the Convertible Notes Exchanging Investors) is responsible for any applicable transfer taxes.
(i) The Company will, upon request, execute and Warrants purchased deliver any additional documents deemed by the Trustee or the transfer agent to be purchased reasonably necessary to complete the transactions contemplated by the Investor;this Agreement.
(pj) except as has been public disclosed by the Company, the The Company and each of its subsidiaries within the Subsidiaries meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act (“subsidiaries”) have been duly organized and are conducting validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in compliance in all material respects with all applicable licensing and anti-pollution legislationwhich they are engaged, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to except where the Company and its Subsidiaries. Except as has been public disclosed by the Company, the Company is not aware of any such legislation, regulations, by-laws or lawful requirement presently in force or proposed failure to be brought into force by any governmental so qualified or regulatory have such power or authority which the Company anticipates the Company would not, individually or any Subsidiary will be unable to comply with without materially adversely affecting their respective businesses;
(q) in addition to Common Shares issued and except for the Common Shares to be reserved and allotted in accordance with the transaction contemplated hereby, not more than 49,377,955 Common Shares are reserved for issuance for various reasons including for exercise of stock options, conversion of convertible debentures, finder's fees and exercise of warrants;
(r) the Company currently meets, and will take all necessary action to continue to meet, the "registrant" requirements set forth in the general instruction 1A to Form F-3 under the 1933 Act;
(s) the Company maintains a system of internal accounting controls sufficientaggregate, in the judgment of the Company's board of directors, to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorizationshave a Material Adverse Effect, (ii) prevent or materially interfere with consummation of the transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountabilitycontemplated by this Agreement, or (iii) access to assets is permitted only result in accordance with management's general or specific authorization and (iv) the recorded accountability delisting of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesShares from NASDAQ.
Appears in 1 contract
