Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing and acknowledges and confirms that the Subscriber is relying upon such representations and warranties in connection with the offer, sale and issuance of the Subscribed Shares to the Subscriber: (a) The Corporation and its subsidiaries are corporations incorporated and existing in good standing under the laws of the jurisdictions in which they are incorporated, continued or amalgamated; (b) The execution and delivery of, and performance by the Corporation of this Agreement have been authorized by all necessary corporate action on the part of the Corporation; (c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms; (d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange; (e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares; (f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”); (g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares; (h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Laws; (i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities; (j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles; (k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) the Corporation has not taken any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange; (l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction; (m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition of the Corporation provided by the Corporation or any of its advisers to the Subscriber is true, accurate and complete in all material respects; and (n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their terms.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Nevsun Resources LTD)
Representations and Warranties of the Corporation. The Corporation hereby represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriter and acknowledges and confirms that the Subscriber Underwriter is relying upon such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnits that:
(a) The each of the Corporation and its subsidiaries are corporations incorporated Subsidiaries is a corporation duly incorporated, continued or amalgamated and validly existing in good standing under the laws of the jurisdictions jurisdiction in which they are it was incorporated, continued or amalgamated, as the case may be, and has all requisite corporate power and authority and is duly qualified and holds all necessary material permits, licences and authorizations necessary or required to carry on its business as now conducted and proposed to be conducted to own, lease or operate its properties and assets and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up;
(b) The execution and delivery of, and performance by the Corporation of this Agreement have been authorized by all necessary corporate action on Subsidiaries are the part only subsidiaries of the Corporation;
(c) This Agreement has been duly executed and delivered by the . The Corporation and constitutes a legal, valid and binding agreement does not beneficially own or exercise control or direction over 10% or more of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval outstanding voting shares of any Person in connection with the execution company that holds any assets or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, conducts any operations other than the Exchange’s acceptance Subsidiaries and the Corporation beneficially owns, directly or indirectly, the percentage indicated on Schedule “A” hereto of the transactions contemplated herein, issued and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices outstanding shares in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists Subsidiaries which are free and clear of an unlimited number all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of Common Shares and preferred any kind whatsoever, all of such shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when are validly issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be are outstanding as fully paid and non-non- assessable sharesshares and no person has any right, and will not have been issued in violation agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or subject to any pre-emptive rights or other contractual rights to option, for the purchase securities issued by from the Corporation or in violation of any Applicable Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to interest in any of such shares or for the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act issue or allotment of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer unissued shares in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading capital of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) the Corporation has not taken any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition of the Corporation provided by the Corporation Subsidiaries or any of its advisers to the Subscriber is true, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation other security convertible into or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their terms.exchangeable for any such shares;
Appears in 1 contract
Samples: Underwriting Agreement
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber Trexs and each Investor as at the date of this Agreement and at Agreement, the Time of Initial Subscription Closing, the Supplemental Subscription Closing and acknowledges and confirms that the Subscriber is relying upon such representations and warranties in connection with the offer, sale and issuance of the Subscribed Shares to the Subscribereach Second Tranche Closing:
(a) The Corporation (i) is duly organized and its subsidiaries are corporations incorporated and validly existing in good standing under the laws of the jurisdictions jurisdiction of its organization, (ii) has full corporate power and authority and possesses all governmental franchises, licenses, permits, authorizations and approvals necessary to enable it to use its corporate name in all material respects and to own, lease or otherwise hold its properties and assets and to carry on its business as presently conducted, in each case in all material respects, (iii) is duly qualified and in good standing to do business in each jurisdiction in which they are incorporatedthe nature of its business or the ownership, continued leasing or amalgamated;holding of its properties makes such qualification necessary, and (iv) is in compliance in all respects material to its business with all Applicable Law.
(b) The execution Corporation is duly qualified to carry on business in the Province of British Columbia and delivery ofin each other jurisdiction, and performance by if any, wherein the Corporation of this Agreement have been authorized by all necessary corporate action on the part carrying out of the Corporation;activities contemplated makes such qualifications necessary.
(c) This Agreement The Corporation has the corporate power and authority to (i) sell the New CVRs, issue the New Notes and issue the 10% Notes, and (ii) amend and restate the Existing CVRs and Existing Notes, and to incur the obligations evidenced by each of the foregoing. The Corporation has taken all necessary action to authorize the execution, delivery and performance of its obligations under or pursuant to the Closing Documents. Subject to the execution and delivery of the Closing Documents, no consent or authorization of, or filing with, any Person (including, without limitation, any Governmental Authority or other third party) is required in connection with the execution, delivery or performance by the Corporation, or for the validity or enforceability in accordance with its terms against it, of the Closing Documents, the Private Placement, the sale of the New CVRs, the issuance New Notes and the issuance of the 10% Notes, other than consents, authorizations and filings which have been obtained or made and are in full force and effect.
(d) The Corporation has duly executed and delivered delivered, or will at the applicable time have duly executed and delivered, each of the Closing Documents required to be executed by the Corporation and constitutes the Closing Documents constitute, or will constitute, a legal, valid valid, and binding agreement obligation of the Corporation Corporation, enforceable against it in accordance with its terms;.
(de) The Corporation is not required to give any notice toexecution, make any filing with or obtain any authorizationdelivery, order or other consent or approval of any Person in connection with the execution or delivery of or and performance of its obligations under this Agreement or the consummation Closing Documents, issuance of the OfferingNew Notes and 10% Notes and sale of the New CVRs do not and will not breach, violate, conflict with or result in a default under: (i) the Corporation’s articles, or any unanimous shareholders agreement, (ii) any law, statute, rule, or regulation to which the Corporation is subject, (iii) any order, judgment or decree of any court or other Governmental Authority applicable to it or any of its assets, or (iv) any agreement to which the Corporation is a party or by which it is bound, including any contractual restriction binding on or affecting it or any of its assets including, without limitation, the Claim Proceeding Rights.
(f) As of the date of this Agreement, (i) no litigation by, investigation known by it, or proceeding of, any Governmental Authority is pending against it with respect to the validity, binding effect or enforceability of the Private Placement, the issuance of the New Notes and 10% Notes, the sale of the New CVRs and the other transactions contemplated hereby, and (ii) other than the Exchange’s acceptance Claim Proceedings or as disclosed to Trexs, no lawsuits, claims, proceedings or investigations are pending or, to the best of its Knowledge and Belief, threatened against it or any of its properties, assets, operations or businesses including, without limitation any proceedings relating to the bankruptcy, insolvency, liquidation, dissolution, or winding up of the transactions contemplated herein, and the filings required to be made prior to Corporation.
(g) No default or following Closing, event of default under the rules any material obligation of the Exchange;
Corporation (eincluding, without limitation, the Existing Investment Documents) The Corporation has complied with Applicable Securities Laws in connection with occurred and is continuing and no such event or circumstance would occur as a result of the offerPrivate Placement, the sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in New CVRs, New Notes and 10% Notes or the city of Vancouver, is performance by the duly appointed registrar and transfer agent Corporation of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;Obligations.
(h) The Subscribed Shares have Settlement Agreement has not been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding breached and, to the knowledge of the Corporation, there is has been no agreement between breach by any shareholders or officers or directors party of the Corporationterms and conditions of the Settlement Agreement.
(i) All consents, approvals, actions, authorizations, exceptions, notices, filings and registrations that affects or relates are required to the voting or giving of written consents have been obtained by it with respect to this Agreement and the Closing Documents have been duly obtained and are in full force and effect and all conditions of any of the Corporation’s securities;such consents, approvals, actions, authorizations, exceptions, notices, filings and registrations have been duly complied with.
(j) The board of directors of the Corporation and its subsidiaries at least two thirds of the Corporation’s independent directors have not committed an act determined that the criteria set forth in Subsection 5.7(e) of bankruptcy, are not insolvent, MI 61-101 have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;been satisfied.
(k) The Corporation has made its own independent decisions to enter into each of the Closing Documents and has determined that the Private Placement is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed appropriate or proper based upon its own judgment and posted for trading on the Exchange and no order ceasing or suspending tradingupon advice from such advisers as it has deemed necessary, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) on reasonable commercial terms that are not less advantageous to the Corporation has not taken any action which would reasonably be expected to result in than if the delisting or suspension of Private Placement was obtained from persons dealing at arm’s length with the Common Shares on or from the Exchange;Corporation.
(l) The Corporation is licensed, registered not relying on any communication (written or qualified oral) of Trexs as an extra-provincial legal advice or foreign corporation in all jurisdictions where as a recommendation to complete the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;Private Placement.
(m) The All applicable information in all documents filed that is or has been furnished to Trexs or any other Investor by or on behalf of the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (Corporation, as of the “Disclosure Record”) was, at the time date of such filinginformation, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition of the Corporation provided by the Corporation or any of its advisers to the Subscriber is true, accurate and complete in all every material respects; andrespect.
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which has no insolvency proceedings threatened or outstanding against it.
(o) There are no judgments against the Corporation or its subsidiaries holds an interest which are unsatisfied, nor is the Corporation or its subsidiaries subject to any consent decrees or injunctions.
(p) There is no requirement for the Corporation to obtain Shareholders’ approval to enter into this Agreement or any of the Closing Documents, complete the Private Placement, receive any Advance, sell and issue the New CVRs, New Notes or 10% Notes and perform its Obligations.
(q) Upon delivery to the New Collateral Agent of the New CVR Security Documents, the New CVR Security Documents will create a legal, valid and enforceable Lien on the New CVR Collateral in favour of the New Collateral Agent in the priority contemplated by the Intercreditor Agreement.
(r) There are no Liens against or affecting any of the New CVR Collateral (whether created by contract, operation of law or as a property result of any court order or asset are similar order or decree issued by any Governmental Authority whether pursuant to insolvency proceedings or otherwise), other than Permitted Liens, the Existing CVR Security Documents and the Liens granted in good standing connection with the Loan Agreement, which, for certainty, shall be discharged upon repayment in all material respects according to their termsfull of the Loan Repayment Obligations.
Appears in 1 contract
Samples: Investment and Backstop Agreement
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Agent and acknowledges and confirms that the Subscriber Agent is relying upon such representations and warranties in connection with the offerwarranties, sale and issuance of the Subscribed Shares to the Subscriberas follows:
(a) The the Corporation has been duly incorporated, amalgamated or continued and its subsidiaries are corporations incorporated and existing in good standing is validly subsisting under the laws of Business Corporations Act (British Columbia) (“BCBCA”) and Nutaq Innovation Inc., its only subsidiary (the jurisdictions in which they are “Subsidiary”) is a corporation duly incorporated, continued or amalgamatedamalgamated and validly existing under Canada Business Corporations Act (“CBCA”), and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing their dissolution or winding up;
(b) The execution the Subsidiary is wholly-owned by the Corporation, all of the issued and delivery ofoutstanding shares of the Subsidiary, all of which are issued and performance by fully paid and non-assessable shares, are free and clear of all mortgages, liens, charges, security interests, encumbrances, claims or demands whatsoever and no person, firm or corporation has any agreement, option, right or privilege (whether preemptive or contractual) capable of becoming an agreement, for the purchase from the Corporation of this Agreement have been authorized by all necessary corporate action on the part Subsidiary or of any interest in the Subsidiary or any of the Corporationshares in the capital of the Subsidiary;
(c) This Agreement has been duly executed and delivered by the Corporation and constitutes the Subsidiary are each qualified to carry on business under the laws of each jurisdiction in which they carry on a legal, valid and binding agreement material portion of the Corporation enforceable against it in accordance with its termstheir business;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation each of the OfferingCorporation and the Subsidiary has all requisite corporate capacity, power and authority to carry on its business as now conducted and as presently proposed to be conducted by it and to own, lease and operate its assets and the Corporation has all requisite corporate power and authority to carry out the provisions of this Agreement, the Subscription Agreements, the certificates representing Debenture and the certificates representing the Broker Warrants and to undertake the Offering and all other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred common shares without par value of which 48,730,165 Common Shares 106,591,871 common shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares outstanding, all of the Corporation which shares are fully paid and non-assessable. There ;
(f) the minute books of the Corporation and the Subsidiary are true and correct and contain full true and correct copies of the constating documents of the Corporation and the Subsidiary and the minutes of all meetings and all the resolutions of the directors and shareholders thereof;
(g) other than pursuant to the provisions of this Agreement, as of the date of this Agreement, no person, firm, corporation or other equity entity holds any securities convertible or voting exchangeable into securities of the Corporation outstandingor now has any agreement, warrant, option, right or privilege (whether preemptive or contractual) being or capable of becoming an agreement, option or right for the purchase, subscription or issuance of any unissued shares, securities (including convertible securities) or warrants of the Corporation other than common share purchase warrants exercisable for 6,572,599 Common Shares and there are no outstanding 4,510,000 stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to all of which in the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 aggregate are exercisable for 11,082,599 Common Shares;
(h) The Subscribed Shares each of this Agreement, the Subscription Agreements, the Debentures, the GSA, the Agency and Interlender Agreement, the Nuran Hypothec, the Debenture Warrants and the Broker Warrant Certificates (collectively, the “Transaction Documents”) have been been, or will be, upon execution thereof, duly authorized for issuance and sale by all necessary action on the part of the Corporation andauthorized, when issued executed and delivered by the Corporation against payment and constitute, or will constitute when executed, a legal, valid and binding obligation of the consideration Corporation enforceable in accordance with its terms except that: (i) the enforcement thereof pursuant to this Agreementmay be limited by bankruptcy, will have been validly issuedinsolvency and other laws affecting the enforcement of creditors’ rights generally, (ii) rights of indemnity, contribution and will waiver of contribution thereunder may be outstanding as fully paid limited under applicable law; and non-assessable shares(iii) equitable remedies, including, without limitation, specific performance and injunctive relief, may be granted only in the discretion of a court of competent jurisdiction;
(i) the issuance of the Offered Securities and the Bonus Shares will not have been issued in violation of or be subject to any pre-emptive rights or other contractual rights right to purchase securities issued granted by the Corporation or in violation of any Applicable Securities Lawsto which the Corporation is subject;
(ij) The the Corporation is not in default or breach of, and the execution and delivery of, and the compliance with the terms of, the Transaction Documents will not result in a material breach of, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a material breach of, and do not and will not conflict with: (i) any material statute, rule or regulation applicable to the Corporation; (ii) any of the terms, conditions or provisions of the constating documents or articles laws or resolutions of the Corporation; (iii) any material trust indenture, agreement, instrument, lease or other document (“Material Contract”) to which the Corporation is a party or subject by which the Corporation is or will be contractually bound as of the Closing Time; or (iv) any material judgment, decree or order binding on the Corporation, or any of its assets;
(k) all Material Contracts to which the Corporation and the Subsidiary is a party are in good standing and in full force and effect unamended and no material default or breach exists in respect of any agreement of them on the part of any of the parties to them and no event has occurred which, after the giving of notice or understanding the lapse of time or both would constitute such a material default or breach and which would have a material adverse effect on the Corporation and the Subsidiary, taken as a whole; the foregoing includes all the presently outstanding Material Contracts entered into by the Corporation and or the Subsidiary in the course of carrying out its operations and all operations related thereto;
(l) the interim financial statements of the Corporation for the nine months ended July 31, 2016 (the “Financial Statements”) (i) are, in all material respects, consistent with the books and records of the Corporation on a consolidated basis; (ii) contain and reflect all material adjustments for the fair presentation of the consolidated results of operations and the financial condition of the business of the Corporation for the periods covered thereby in accordance with International Financial Reporting Standards, consistently applied; and
(iii) present fully, fairly and correctly, the consolidated material assets and financial condition of the Corporation as at the date thereof and the results of operations and the changes in financial position for the period then ended;
(m) the Corporation maintains a system of internal accounting controls sufficient to provide reasonable assurances that transactions are executed in accordance with management’s general or specific authorization, and transactions are recorded as necessary to permit preparation of financial statements in conformity with International Financial Reporting Standards and to maintain accountability for assets and liabilities;
(n) to the knowledge of the Corporation, the auditors of the Corporation who audited the financial statements of the Corporation for the most recent financial year-end and who provided their audit report thereon are independent public accountants as required under applicable legislation and there is no agreement between any shareholders or officers or directors has never been a reportable disagreement (within the meaning of NI 51-102) with the present auditors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(jo) The the Corporation and its subsidiaries have not committed an act the Subsidiary maintain insurance coverage and insurance policies similar to those maintained by other companies doing business in industries similar to those of bankruptcythe Corporation and the Subsidiary (other than directors’ and officers’ liability insurance), their insurance policies and insurance coverages are not insolventsufficient for the purposes of their business, have not proposed a compromise or arrangement all payments under such policies are up to creditors generally, have not had a petition or a receiving order date and all such policies are in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principlesgood standing;
(kp) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) none of the Corporation has not taken Corporation, its officers or directors is aware of any action circumstances presently existing under which would liability is or could reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition of the Corporation provided by the Corporation or any of its advisers to the Subscriber is true, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their terms.be incurred under Part XXIII - –
Appears in 1 contract
Samples: Agency Agreement
Representations and Warranties of the Corporation. The Corporation hereby represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriters and acknowledges and confirms that the Subscriber is Underwriters are relying upon such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnits that:
(a) The each of the Corporation and its subsidiaries are corporations incorporated Subsidiaries is a corporation duly incorporated, continued or amalgamated and validly existing in good standing under the laws of the jurisdictions jurisdiction in which they are it was incorporated, continued or amalgamated, as the case may be, and has all requisite corporate power and authority and is duly qualified and holds all necessary material permits, licences and authorizations necessary or required to carry on its business as now conducted and proposed to be conducted to own, lease or operate its properties and assets and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up;
(b) the Subsidiaries are the only subsidiaries of the Corporation. The execution Corporation does not beneficially own or exercise control or direction over 10% or more of the outstanding voting shares of any company that holds any assets or conducts any operations other than the Subsidiaries and delivery ofthe Corporation beneficially owns, directly or indirectly, the percentage indicated on Schedule “B” hereto of the issued and performance by outstanding shares in the capital of the Subsidiaries which are free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and are validly issued and are outstanding as fully paid and non- assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of this Agreement have been authorized by all necessary corporate action on any interest in any of such shares or for the part issue or allotment of any unissued shares in the capital of any of the CorporationSubsidiaries or any other security convertible into or exchangeable for any such shares;
(c) This Agreement has been duly executed and delivered by the Corporation has all requisite corporate power, authority and constitutes a legal, valid and binding agreement capacity to enter into each of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or and the consummation of the Offering, other than the Exchange’s acceptance of Warrant Indenture and to perform the transactions contemplated hereinherein and therein, and including, without limitation, to issue the filings required to be made prior to or following ClosingBase Units, under the rules of Unit Shares, the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offerWarrants, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of VancouverAdditional Units, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Additional Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common SharesAdditional Warrants;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) the Corporation has not taken any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition of the Corporation provided by the Corporation or any of its advisers to the Subscriber is true, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their terms.
Appears in 1 contract
Samples: Underwriting Agreement
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriter that, and acknowledges and confirms that the Subscriber Underwriter is relying upon upon, such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnderwritten Shares:
(a) The the Corporation is a company duly continued, organized and its subsidiaries are corporations incorporated and validly existing in good standing under the laws of Alberta and is properly registered under the laws of all jurisdictions in which they its operations are incorporated, continued or amalgamated;
(b) The execution and delivery of, and performance by carried on except where the Corporation of this Agreement failure to be so registered would not have been authorized by all necessary corporate action a material adverse effect on the part operations of the Corporation;
(cb) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(hi) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part a reporting issuer not in default in any material respect of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issuedany requirement under Canadian Securities Laws, and will be outstanding as fully paid and non-assessable shares, and will (ii) not have been issued in violation of or subject to default in any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation material respect of any Applicable requirement under U.S. Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (iic) the Corporation has not taken any action which would reasonably be expected the requisite corporate power, authority and capacity to result in enter into this Agreement and to perform the delisting transactions contemplated herein and the Corporation has the requisite corporate power, authority and capacity to own its property and assets including licences or suspension of other similar rights and to carry on the Common Shares affairs customarily carried on by it and has all the requisite corporate power and authority to carry on its affairs as currently carried on or from the Exchange;
(l) as currently proposed to be carried on. The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation conducting its affairs in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each jurisdiction in which its affairs are carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns its property or carries on affairs to enable its affairs to be carried on as now conducted and its property and assets to be owned, except where such jurisdictionnon-compliance or failure to obtain such licence, registration or qualification would not have a material adverse effect on the affairs of the Corporation and all such licences, registrations and qualifications are valid and subsisting and in good standing;
(d) the Corporation has authorized share capital consisting of an unlimited number of Class A Shares and 50,000 Common Shares of which 40,000 Common Shares and 164,967,713 Class A Shares and no more are validly issued and outstanding as fully paid and non-assessable. No person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Corporation of any unissued shares of the Corporation except as otherwise referred to in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(e) except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements, to the best of the Corporation’s knowledge, there is no action, proceeding or investigation pending or threatened against the Corporation before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which is reasonably expected to result in any material change in the affairs or in the condition (financial or otherwise) of the Corporation or its properties or assets (taken as a whole), or which questions the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or as contemplated by the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(f) since January 31, 2008, there have been no changes in the assets or liabilities of the Corporation from the position thereof as set forth therein, except changes arising from transactions in the ordinary course of its affairs which, in the aggregate, have not been material to the Corporation and except for changes that are disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(g) the financial statements of the Corporation, including the notes thereto, incorporated in Disclosure Package, the Prospectus Supplements and the Registration Statement have been prepared in conformity with Canadian generally accepted accounting principles and in a manner that is consistent with U.S. generally accepted accounting principles and in accordance with the 1933 Act and the Rules, including the requirements of Form F-10, in each case applied on a consistent basis throughout the periods involved;
(h) the financial statements of the Corporation as incorporated by reference in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements present fairly in all material respects the financial position of the Corporation as at the dates of such statements;
(i) the Corporation is not in material violation of, and the execution and delivery of this Agreement and the performance by the Corporation of its obligations under this Agreement will not result in any material breach or, violation of, or be in material conflict with, or constitute a material default under, or create a state of facts which after notice or lapse of time, or both, would constitute a material default under any term or provision of the charter documents or by-laws of the Corporation or any resolution of the directors or shareholders of the Corporation or any material contract, mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, licence or regulation applicable to the Corporation;
(j) no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required of the Corporation in connection with the execution and delivery or with the performance by the Corporation of this Agreement except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements and compliance with the Applicable Securities Laws with regard to the distribution of the Underwritten Shares in the Qualifying Canadian Jurisdictions and the United States;
(k) this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and binding obligation of the Corporation, enforceable in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law and enforceability of paragraph 11 would be determined only in the discretion of a court;
(l) the Underwritten Shares hereinbefore described have been, or prior to the Closing Time will be, duly authorized for issuance and, when a certificate for such shares is countersigned by the Canadian Transfer Agent and issued, delivered and paid for, such shares will be validly issued, fully paid and non-assessable and all statements made in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements describing such shares will be accurate in all material respects;
(m) The information in all documents filed the form of the share certificate representing the Class A Shares has been approved and adopted by the Corporation and complies with all applicable legal and regulatory requirements, including the requirements of the Toronto Stock Exchange;
(n) to the knowledge of the Corporation, no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the use or effectiveness of the Shelf Prospectuses, the Disclosure Package, the Prospectus Supplements, the Registration Statement or any Prospectus Amendment or preventing the distribution of the Underwritten Shares in any Qualifying Canadian Jurisdiction or the United States nor instituted proceedings for that purpose and, to the knowledge of the Corporation, no such proceedings are pending or contemplated;
(o) the Corporation is eligible in accordance with the provisions of National Instrument 44-101 to file a short form prospectus under National Instrument 44-102 with Canadian securities regulatory authorities Securities Regulators;
(including p) the Corporation is not, and upon consummation of the transactions contemplated hereby will not be, an “investment company” or an entity “controlled by an investment company” as such terms are defined in the United States Investment Company Act of 1940, as amended;
(q) CIBC Mellon Trust Company, at its principal office in the Cities of Calgary, Montreal, Toronto and Vancouver has been duly appointed as registrar and transfer agent for the Class A Shares in Canada, and Mellon Investor Services LLC, at its principal office in New York, has been duly appointed as registrar and transfer agent for the Class A Shares in the United States;
(r) to the knowledge of the Corporation, the Corporation is not a “related issuer” or “connected issuer” (as such terms are defined under the Canadian Securities Laws) of the Underwriter;
(s) the Corporation has prepared and filed with the SEC an appointment of agent for service of process upon the Corporation on Form F-X;
(t) the Corporation meets the general eligibility requirements for use of Form F-10 under the 1933 Act;
(u) as at their respective dates, the Canadian Shelf Prospectus does, and the Canadian Prospectus Supplement will, comply in all documents filed at xxx.xxxxx.xxx) (material respects with the “Disclosure Record”) wasCanadian Securities Laws and, at the time of such filingdelivery of the Underwritten Shares to the Underwriter, accurate the Canadian Prospectus Supplement will comply in all material respectsrespects with the Canadian Securities Laws;
(v) (i) the U.S. Shelf Prospectus conforms and the U.S. Prospectus Supplement will conform to the Canadian Shelf Prospectus and Canadian Prospectus Supplement, respectively, except for such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC under the 1933 Act (the “Rules”); (ii) the Registration Statement as amended or supplemented, on the Effective Date and on the date hereof did not and does not contain any misrepresentation untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the U.S. Shelf Prospectus, the Corporation’s Form F-X and did the Registration Statement comply, and the U.S. Prospectus Supplement will comply, in all material respects with the 1933 Act and the Rules; (iv) the Disclosure Package does not, and at the Applicable Time, the time of each sale of the Class A Shares in connection with the offering when the U.S. Prospectus Supplement is not yet available to prospective purchasers and at the Closing Date will not, and the U.S. Shelf Prospectus as supplemented by the U.S. Prospectus Supplement as of its date and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Canadian Shelf Prospectus contains, and the Canadian Prospectus Supplement will contain, full, true and plain disclosure of all material facts required to be stated therein relating to the Corporation, the affairs of the Corporation, and the Underwritten Shares, and as of the date of its filing will contain no untrue statement of a material fact and will not omit to disclose state a material fact regarding the Corporation and its affairs that is necessary to make any material factstatement therein not misleading in light of the circumstances in which it was made; provided, except as subsequently corrected however, that this representation and warranty shall not apply to statements or updated omissions made in a subsequently filed document (reliance upon and in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All conformity with information relating to the businessUnderwriter furnished in writing to the Corporation by the Underwriter expressly for use in the Shelf Prospectuses, assetsthe Disclosure Package, liabilities, properties, capitalization the Prospectus Supplements or financial condition the Registration Statement;
(w) there are no reports or information that in accordance with the requirements of the Corporation provided Canadian Securities Regulators or the SEC must be made publicly available or filed in connection with the offering of the Underwritten Shares that have not been made publicly available or filed as required;
(x) the delivery by the Corporation of any signed Prospectus Amendment or material change report required to be filed under the Applicable Securities Laws will constitute a representation and warranty by the Corporation to the Underwriter that all the information and statements contained therein (except information and statements relating to the Underwriter) are true and correct and that no material information has been omitted therefrom which is necessary to make the statements contained therein not misleading;
(y) the Corporation is in material compliance with each material license held by it and is not in violation of, or in default in any material respect under, the applicable statutes, ordinances, rules, regulations, orders or decrees (including, without limitation, “Environmental Laws” as defined below) of any governmental entities, regulatory agencies or bodies asserting or claiming jurisdiction over it or over any part of its advisers affairs or assets, except for such violations and defaults which, singly or in the aggregate, would not have a material adverse effect on the assets or properties, affairs, prospects or condition (financial or otherwise) of the Corporation;
(z) to the Subscriber best of the knowledge of the Corporation, there are no foreign, federal, provincial, state or local laws or regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) which affect or otherwise have any application to the Corporation or its affairs, properties and assets (taken as a whole), or to which the Corporation is true, accurate otherwise subject. The Corporation does not require any license or other approval under any Environmental Laws to conduct its operations;
(aa) there has not been any reportable event (within National Instrument 51-102) with the auditors of the Corporation;
(bb) the Company shall use its best efforts to arrange for the listing and complete in all material respectsposting for trading of the Underwritten Shares on the Stock Exchanges on or before the Time of Closing; and
(ncc) The the Corporation and its subsidiaries own all is using the net proceeds of the properties and assets that they purport to own offering of the Underwritten Shares for the purposes described in the Disclosure Record. Except as disclosed in Shelf Prospectuses, Prospectus Supplements and the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their termsPackage.
Appears in 1 contract
Samples: Underwriting Agreement (Central Fund of Canada LTD)
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriters that, and acknowledges and confirms that the Subscriber is Underwriters are relying upon upon, such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnderwritten Shares:
(a) The the Corporation is a company duly continued, organized and its subsidiaries are corporations incorporated and validly existing in good standing under the laws of Alberta and is properly registered under the laws of all jurisdictions in which they its operations are incorporated, continued or amalgamated;
(b) The execution and delivery of, and performance by carried on except where the Corporation of this Agreement failure to be so registered would not have been authorized by all necessary corporate action a material adverse effect on the part operations of the Corporation;
(cb) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(hi) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part a reporting issuer not in default in any material respect of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issuedany requirement under Canadian Securities Laws, and will be outstanding as fully paid and non-assessable shares, and will (ii) not have been issued in violation of or subject to default in any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation material respect of any Applicable requirement under U.S. Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (iic) the Corporation has not taken any action which would reasonably be expected the requisite corporate power, authority and capacity to result in enter into this Agreement and to perform the delisting transactions contemplated herein and the Corporation has the requisite corporate power, authority and capacity to own its property and assets including licences or suspension of other similar rights and to carry on the Common Shares affairs customarily carried on by it and has all the requisite corporate power and authority to carry on its affairs as currently carried on or from the Exchange;
(l) as currently proposed to be carried on. The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation conducting its affairs in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each jurisdiction in which its affairs are carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns its property or carries on affairs to enable its affairs to be carried on as now conducted and its property and assets to be owned, except where such jurisdictionnon-compliance or failure to obtain such licence, registration or qualification would not have a material adverse effect on the affairs of the Corporation and all such licences, registrations and qualifications are valid and subsisting and in good standing;
(d) the Corporation has authorized share capital consisting of an unlimited number of Class A Shares and 50,000 Common Shares of which 40,000 Common Shares and 238,282,713 Class A Shares and no more are validly issued and outstanding as fully paid and non-assessable. No person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Corporation of any unissued shares of the Corporation except as otherwise referred to in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(e) except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements, to the best of the Corporation’s knowledge, there is no action, proceeding or investigation pending or threatened against the Corporation before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which is reasonably expected to result in any material change in the affairs or in the condition (financial or otherwise) of the Corporation or its properties or assets (taken as a whole), or which questions the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or as contemplated by the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(f) since January 31, 2011, there have been no changes in the assets or liabilities of the Corporation from the position thereof as set forth therein, except changes arising from transactions in the ordinary course of its affairs which, in the aggregate, have not been material to the Corporation and except for changes that are disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(g) the financial statements of the Corporation, including the notes thereto, incorporated in the Disclosure Package, the Prospectus Supplements and the Registration Statement have been prepared in conformity with Canadian generally accepted accounting principles and in a manner that is consistent with U.S. generally accepted accounting principles and in accordance with the 1933 Act and the Rules, including the requirements of Form F-10, in each case applied on a consistent basis throughout the periods involved;
(h) the financial statements of the Corporation as incorporated by reference in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements present fairly in all material respects the financial position of the Corporation as at the dates of such statements;
(i) the Corporation is not in material violation of, and the execution and delivery of this Agreement and the performance by the Corporation of its obligations under this Agreement will not result in any material breach or, violation of, or be in material conflict with, or constitute a material default under, or create a state of facts which after notice or lapse of time, or both, would constitute a material default under any term or provision of the charter documents or by-laws of the Corporation or any resolution of the directors or shareholders of the Corporation or any material contract, mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, licence or regulation applicable to the Corporation;
(j) no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required of the Corporation in connection with the execution and delivery or with the performance by the Corporation of this Agreement except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements and compliance with the Applicable Securities Laws with regard to the distribution of the Underwritten Shares in the Qualifying Canadian Jurisdictions and the United States;
(k) this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and binding obligation of the Corporation, enforceable in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law and enforceability of paragraph 11 would be determined only in the discretion of a court;
(l) the Underwritten Shares hereinbefore described have been, or prior to the Closing Time will be, duly authorized for issuance and, when a certificate for such shares is countersigned by the Canadian Transfer Agent and issued, delivered and paid for, such shares will be validly issued, fully paid and non-assessable and all statements made in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements describing such shares will be accurate in all material respects;
(m) The information in all documents filed the form of the share certificate representing the Class A Shares has been approved and adopted by the Corporation and complies with all applicable legal and regulatory requirements, including the requirements of the Toronto Stock Exchange;
(n) to the knowledge of the Corporation, no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the use or effectiveness of the Shelf Prospectuses, the Disclosure Package, the Prospectus Supplements, the Registration Statement or any Prospectus Amendment or preventing the distribution of the Underwritten Shares in any Qualifying Canadian Jurisdiction or the United States nor instituted proceedings for that purpose and, to the knowledge of the Corporation, no such proceedings are pending or contemplated;
(o) the Corporation is eligible in accordance with the provisions of National Instrument 44-101 to file a short form prospectus under National Instrument 44-102 with Canadian securities regulatory authorities Securities Regulators;
(including p) the Corporation is not, and upon consummation of the transactions contemplated hereby will not be, an "investment company" or an entity "controlled by an investment company" as such terms are defined in the United States Investment Company Act of 1940, as amended;
(q) CIBC Mellon Trust Company, at its principal office in the Cities of Calgary, Montreal, Toronto and Vancouver has been duly appointed as registrar and transfer agent for the Class A Shares in Canada, and Mellon Investor Services LLC, at its principal office in Jersey City, New Jersey and Pittsburgh, Pennsylvania, has been duly appointed as registrar and transfer agent for the Class A Shares in the United States;
(r) to the knowledge of the Corporation, the Corporation is not a "related issuer" or "connected issuer" (as such terms are defined under the Canadian Securities Laws) of the Underwriters;
(s) the Corporation has prepared and filed with the SEC an appointment of agent for service of process upon the Corporation on Form F-X;
(t) the Corporation meets the general eligibility requirements for use of Form F-10 under the 1933 Act;
(u) as at their respective dates, the Canadian Shelf Prospectus does, and the Canadian Prospectus Supplement will, comply in all documents filed at xxx.xxxxx.xxx) (material respects with the “Disclosure Record”) wasCanadian Securities Laws and, at the time of such filingdelivery of the Underwritten Shares to the Underwriters, accurate the Canadian Prospectus Supplement will comply in all material respectsrespects with the Canadian Securities Laws;
(v) (i) the U.S. Shelf Prospectus conforms and the U.S. Prospectus Supplement will conform to the Canadian Shelf Prospectus and Canadian Prospectus Supplement, respectively, except for such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC under the 1933 Act (the "Rules"); (ii) the Registration Statement as amended or supplemented, on the Effective Date and on the date hereof did not and does not contain any misrepresentation untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the U.S. Shelf Prospectus, the Corporation’s Form F-X and did the Registration Statement comply, and the U.S. Prospectus Supplement will comply, in all material respects with the 1933 Act and the Rules; (iv) the Disclosure Package does not, and at the Applicable Time, the time of each sale of the Class A Shares in connection with the offering when the U.S. Prospectus Supplement is not yet available to prospective purchasers and at the Closing Date will not, and the U.S. Shelf Prospectus as supplemented by the U.S. Prospectus Supplement as of its date and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Canadian Shelf Prospectus contains, and the Canadian Prospectus Supplement will contain, full, true and plain disclosure of all material facts required to be stated therein relating to the Corporation, the affairs of the Corporation, and the Underwritten Shares, and as of the date of its filing will contain no untrue statement of a material fact and will not omit to disclose state a material fact regarding the Corporation and its affairs that is necessary to make any material factstatement therein not misleading in light of the circumstances in which it was made; provided, except as subsequently corrected however, that this representation and warranty shall not apply to statements or updated omissions made in a subsequently filed document (reliance upon and in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All conformity with information relating to the businessUnderwriters furnished in writing to the Corporation by the Underwriters expressly for use in the Shelf Prospectuses, assetsthe Disclosure Package, liabilities, properties, capitalization the Prospectus Supplements or financial condition the Registration Statement;
(w) there are no reports or information that in accordance with the requirements of the Corporation provided Canadian Securities Regulators or the SEC must be made publicly available or filed in connection with the offering of the Underwritten Shares that have not been made publicly available or filed as required;
(x) the delivery by the Corporation of any signed Prospectus Amendment or material change report required to be filed under the Applicable Securities Laws will constitute a representation and warranty by the Corporation to the Underwriters that all the information and statements contained therein (except information and statements relating to the Underwriters) are true and correct and that no material information has been omitted therefrom which is necessary to make the statements contained therein not misleading;
(y) the Corporation is in material compliance with each material license held by it and is not in violation of, or in default in any material respect under, the applicable statutes, ordinances, rules, regulations, orders or decrees (including, without limitation, "Environmental Laws" as defined below) of any governmental entities, regulatory agencies or bodies asserting or claiming jurisdiction over it or over any part of its advisers affairs or assets, except for such violations and defaults which, singly or in the aggregate, would not have a material adverse effect on the assets or properties, affairs, prospects or condition (financial or otherwise) of the Corporation;
(z) to the Subscriber best of the knowledge of the Corporation, there are no foreign, federal, provincial, state or local laws or regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws") which affect or otherwise have any application to the Corporation or its affairs, properties and assets (taken as a whole), or to which the Corporation is true, accurate otherwise subject. The Corporation does not require any license or other approval under any Environmental Laws to conduct its operations; (aa) there has not been any reportable event (within National Instrument 51-102) with the auditors of the Corporation;
(bb) the Company shall use its best efforts to arrange for the listing and complete in all material respectsposting for trading of the Underwritten Shares on the Stock Exchanges on or before the Time of Closing; and
(ncc) The the Corporation and its subsidiaries own all is using the net proceeds of the properties and assets that they purport to own offering of the Underwritten Shares for the purposes described in the Disclosure Record. Except as disclosed in Shelf Prospectuses, Prospectus Supplements and the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their termsPackage.
Appears in 1 contract
Samples: Underwriting Agreement (Central Fund of Canada LTD)
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing and acknowledges and confirms that the Subscriber is relying upon such representations and warranties in connection with the offer, sale and issuance of the Subscribed Shares to the SubscriberPurchaser that:
(a) The the Corporation and its subsidiaries are corporations has been duly incorporated and is validly existing and in good standing under the laws of the jurisdictions in which they are incorporated, continued or amalgamatedProvince of British Columbia and has all requisite corporate power and capacity to enter into and carry out its obligations under this Subscription Agreement and to carry on its Business as currently conducted and as proposed to be conducted;
(b) The execution on the Closing Date and the date of each Subsequent Closing, the Corporation will have taken all corporate steps and proceedings necessary to authorize the execution, delivery of, and performance by the Corporation of this Subscription Agreement have been authorized by all necessary corporate action on and the part ancillary documents entered into pursuant to such agreement and to observe the performance of the Corporationeach in accordance with their terms;
(c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred common shares without par value value, of which 48,730,165 Common Shares are a total of 41,600,000 common shares were issued and outstanding (without giving effect as of March 28, 2014 immediately prior to the Common issuance of any Shares subscribed for under this Agreement). The outstanding Common Shares hereunder;
(d) no order ceasing or suspending trading in the securities of the Corporation nor prohibiting the sale of such securities has been issued to the Corporation or its directors, or officers and, to the best of the knowledge of the Corporation, no investigations or proceedings for such purposes are fully pending or threatened;
(e) at the Closing Time and at the time of each Subsequent Closing, the Shares issuable to the Purchaser hereunder will be duly and validly created, authorized, allotted and issued as fully-paid and non-assessable. There are no other equity or voting securities assessable Shares;
(f) when executed and delivered, this Subscription Agreement and the ancillary documents entered into pursuant to such agreement will constitute valid and legally binding obligations of the Corporation outstandingenforceable in accordance with their respective terms subject, however, to limitations with respect to enforcement imposed by applicable laws in connection with bankruptcy or similar proceedings and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital extent that equitable remedies such as specific performance and injunction are in the discretion of the court from which they are sought;
(g) the corporate records and the minute book of the Corporation is 51,291,665 Common Sharescontains true, accurate and complete record of all meetings, resolutions and procedures of the members and directors of the Corporation;
(h) The Subscribed Shares have been duly authorized other than pursuant to amounts expended or owing in connection with the acquisition or development of the Facilities, matters relating to licensing under the Marihuana Legislation (including applying for issuance the Build Letters), and sale by all necessary action on the part professional and consulting fees, there are no debts or liabilities (whether accrued, contingent, absolute or otherwise and whether or not determined or determinable) of the Corporation andof any kind whatsoever, when issued (including liability relating to income or other taxes) and delivered by there is no basis for assertion against the Corporation against payment of any debts or liabilities of any kind other than trade payables incurred in the ordinary course of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation routine daily affairs of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities LawsCorporation;
(i) other than pursuant to this Subscription Agreement and the Shareholders’ Agreement, no person has any Contract, option or any right or privilege capable of becoming a Contract or option, including convertible securities, warrants, options or other convertible obligations or other rights to purchase, of any nature, binding upon or which at any time in the future may become binding upon the Corporation (i) for the subscription, allotment, issue, purchase or acquisition by any means of any unissued Shares or of any other debt or equity securities of the Corporation, whether issued or unissued, (ii) for the conversion of any instruments or securities of the Corporation, or (iii) for the registration or offer to purchase (public or private) of any Shares or any other debt or equity securities of the Corporation;
(j) other than certain amounts that have been loaned from related parties that will be repaid out of the proceeds of this offering, no former or current director, officer or shareholder of the Corporation or any other Person not dealing at arm’s length with the Corporation, have any outstanding indebtedness, liability or obligation to the Corporation, the Corporation is not indebted or otherwise obligated to any such Person, and no such Person is party to any transaction, contract or agreement with the Corporation;
(k) the Corporation is not bound by any Contract, assurance, bond, undertaking, guarantee or indemnity under or pursuant to which they have guaranteed, endorsed or indemnified the debts, obligations or liabilities of any Person;
(l) the Corporation has good and marketable title to all of its assets, free and clear of any and all Encumbrances and no Person other than the Corporation owns or has any right in or to any property or assets which are necessary for or are used by the Companies in the conduct of the Business;
(m) the Corporation has made application to become a licensed producer under the Controlled Drugs and Substances Act (Canada) and the Marihuana for Medical Purposes Regulations (the “Marihuana Legislation”) and has been, or is aware of no reason why it will not be, issued a letter from Health Canada confirming that (i) it will be issued a license to become a licensed producer under the Marihuana Legislation and (ii) authorizing it to build a licensed facility at both, or at a minimum one of the Atholville Facility or the Poekmouche Facility;
(n) the Corporation does not own or have any interest in any real property;
(o) the Corporation has duly and on a timely basis prepared and filed all tax returns, information returns, election forms and other documents required to be filed by it in respect of all Governmental Charges and such returns and documents are complete and correct. The Corporation has paid all Governmental Charges which are due and payable by it on or before the date hereof. The Corporation has no liability for Governmental Charges other than those arising in the ordinary course of the operation of the Business. The Corporation has collected and remitted the amount of any Governmental Charges required to be collected and has remitted such Governmental Charges to the proper tax or other receiving authorities within the time and in the manner required under applicable legislation. The Corporation has withheld from each amount paid or credited to any person the amount of Governmental Charges required to be withheld therefrom and has remitted such Governmental Charges to the proper tax or other receiving authorities within the time required under applicable legislation. Any Governmental Charges which are due and payable by the Corporation as of the date hereof, and any other liability of the Corporation for Governmental Charges, are not in the aggregate materially adverse to the condition of the Corporation;
(p) all of the licenses, trademarks, trade names, trade xxxx and trade name applications, copyrights, service marks, designs, know-how, computer programmes and other intellectual property (collectively, the “Intellectual Property”) standing in the name of or owned by the Corporation, including the name “Zenabis”, and are validly and beneficially owned by same with the sole and exclusive right to use the same, all in good standing and, where required, duly registered in all appropriate offices to preserve the rights thereof and are unencumbered and not subject to any lien nor any right or interest of any other Person as licensee (except as hereinafter provided), co-owner, registered user or otherwise, and there is no ground of invalidity in respect of any thereof. There has been no proceeding or claim challenging the rights of the Corporation as sole, true and absolute owner of such Intellectual Property. The Corporation has not granted any licence or other permission to any Person to use any of the Intellectual Property, except in the ordinary course of business and as disclosed in writing to the Subscriber. The Corporation is not knowingly violating by infringement of or otherwise the rights of others in any domestic or foreign patent, patent application, licenses, trademark, trade name trade xxxx and trade name applications or copyrights. The Corporation has received all necessary assignments, transfers and waivers as may be required to evidence its ownership of the Intellectual Property;
(q) other than pursuant to this Subscription Agreement and the Shareholders’ Agreement, there is no Contract or option, or any right or privilege capable of becoming a Contract or option, for the purchase or acquisition of any interest in the Business or the assets of the Corporation;
(r) other than pursuant to amounts expended or owing in connection with the acquisition or development of the Facilities, matters relating to licensing under the Marihuana Legislation (including applying for the Build Letters), and professional and consulting fees, there are no contracts binding on the Corporation which:
(i) commit any of the Corporation to capital expenditures or involve liabilities in excess of $10,000 in the aggregate;
(ii) involve partnerships, joint ventures, granting of marketing rights by or licensing of any rights of the Corporation; or
(iii) cannot be readily fulfilled or performed in all material respects by the Corporation in the normal course of business;
(s) the Corporation is not a party to or subject bound by any Contract to pay any agreement royalty, license fee or understanding management fee, other than pursuant to the consulting agreements to be entered into referenced in Section 7(g);
(t) there are no actions, suits or proceedings (whether at law or in equity or before any court or regulatory body) pending or, to the knowledge of the Corporation, threatened against or relating to the Corporation, or affecting the properties or businesses of the Corporation, and, to the knowledge of the Corporation, there is are no agreement between existing grounds on which any shareholders such action, suit or officers proceeding might be commenced. There are no outstanding judgments, decrees, orders, rulings or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading injunctions of any of court or government authority which might materially and adversely affect the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) the Corporation has not taken any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization businesses or financial condition of the Corporation provided by the Corporation or any of its advisers to the Subscriber is true, accurate and complete in all material respectsCorporation; and
(nu) the Corporation will use the proceeds from this offering to, among other things, acquire and develop the Atholville Facility, the Poekmouche Facility and the Delta Facility. The Corporation acknowledges and its subsidiaries own all agrees that the Purchaser has entered into this Subscription Agreement and will purchase the Shares relying on the representations and warranties by the Corporation contained in this Agreement. The Corporation further acknowledges and agrees that the representations and warranties made by it and contained in this Subscription Agreement and in the other subscription documents shall be true as at the Closing Time and shall survive the Closing and shall continue in full force and effect from and after Closing for the benefit of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their termsPurchaser.
Appears in 1 contract
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at Lead Agent and to the date of this Agreement and at the Time of Closing Purchasers, and acknowledges and confirms that the Subscriber each of them is relying upon such representations and warranties in connection with the offer, sale and issuance completion of the Subscribed Shares to the SubscriberOffering, that:
(ai) The the Corporation and its subsidiaries are corporations incorporated the Subsidiary has been duly incorporated, or formed, and organized and is validly existing in good standing under the laws of the jurisdictions jurisdiction in which they are it was incorporated, continued formed, amalgamated or amalgamatedcontinued, as the case may be and no steps or proceedings have been taken by any Person, voluntary or otherwise, requiring or authorizing the dissolution or winding up of the Corporation or the Subsidiary;
(bii) The execution and delivery of, and performance by the Corporation of this Agreement have been authorized by all necessary corporate action on the part of the Corporation;
(c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legalthe Subsidiary is duly qualified to carry on its business in each jurisdiction in which the conduct of its business or the ownership, valid leasing or operation of its Assets and binding Properties requires such qualification and has all requisite corporate power and authority to conduct its business and own, lease and operate its Assets and Properties and to execute, deliver and perform its obligations under the Transaction Documents, the Warrant Certificates, the Definitive Agreement and any other document, filing, instrument or agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person delivered in connection with the execution or delivery Offering and the Business Acquisition;
(iii) the Corporation is a “reporting issuer” within the meaning of or performance applicable Securities Laws in the Provinces of British Columbia, Alberta and Ontario, is in good standing and is not included in a list of defaulting reporting issuers maintained by the applicable Securities Regulators in such provinces, and is in compliance, in all material respects, with all of its obligations under this Agreement as a reporting issuer and has not been the subject of any investigation by any stock exchange or the consummation of the Offeringany Securities Regulator, other than the Exchange’s acceptance of the transactions contemplated herein, and the is current with all filings required to be made prior by it under Securities Laws and other Laws, is not aware of any deficiencies in the filing of any documents or reports with any Securities Regulators and there is no material change relating to the Corporation which has occurred and with respect to which the requisite news release or following Closingmaterial change report has not been filed with the DBDC02\DMS\WDOCS\CLNTFLS\5221\009\D0019749 Securities Regulators, under and no securities commission, securities exchange or court has issued any order or obtained any undertaking that adversely impacts, delays or prevents, or that could adversely impact, delay or prevent, the rules of the ExchangeBusiness Acquisition, as currently contemplated;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (iiv) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange CSE and the Corporation has not taken any action which could be reasonably expected to result in the delisting or suspension of such Common Shares on or from the CSE and the Corporation is currently in compliance with the rules and policies of the CSE;
(v) all material filings and fees required to be made and paid by the Corporation pursuant to applicable Securities Laws and the rules and policies of the CSE have been made and paid;
(vi) all documents and information filed by the Corporation on SEDAR contain all material facts pertaining to the securities of the Corporation and does not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Corporation has been in compliance in all material respects with its timely and continuous disclosure obligations under applicable securities laws in Canada, and, without limiting the generality of the foregoing, there has been no order ceasing material change or suspending tradingmaterial fact as to the Corporation that has occurred, other than as which has not been publicly disclosed. The Corporation has not filed any confidential material change reports which remain confidential as at the date hereof and there are no circumstances presently existing under which liability is or would reasonably be expected to be incurred under Part 16.1 – Civil Liability for Secondary Market Disclosure of the Securities Act (British Columbia) and analogous provisions under applicable Securities Laws in the Provinces of Alberta and Ontario;
(vii) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has have been issued by any regulatory authority and are continuing in effect and no (formal or informal) proceedings for such that purpose have been threatened instituted or, to the knowledge of the Corporation, are pending; , contemplated or threatened by any regulatory authority;
(viii) the financial statements of the Corporation for the years ended July, 2018 and 2017 and the 3 month period ended January 31, 2019 and 2018 (i) have been prepared in accordance with IFRS applicable to publicly accountable enterprises, and (ii) the Corporation has not taken any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensedfairly present, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did the financial position, results of operations, the changes in its financial position and cash flows of the Corporation as of the dates thereof and for the periods covered thereby;
(ix) since January 31, 2019: except for the Corporation entering into the share purchase agreement dated March 18, 2019 with Olimax NT SP. Z.O.O and the shareholders of Olimax NT SP. Z.O.O (i) there has not contain any misrepresentation and did not omit to disclose been any material fact, except as subsequently corrected or updated change in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, propertiesobligations (absolute, capitalization accrued, contingent or otherwise), condition (financial condition or otherwise), prospects or results of operations of the Corporation provided by Corporation; (ii) there has not been any material change in the Corporation equity capital or any long-term debt of its advisers to the Subscriber is true, accurate and complete in all material respectsCorporation; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their terms.
Appears in 1 contract
Samples: Agency Agreement
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriter that, and acknowledges and confirms that the Subscriber Underwriter is relying upon upon, such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnderwritten Shares:
(a) The the Corporation is a company duly continued, organized and its subsidiaries are corporations incorporated and validly existing in good standing under the laws of Alberta and is properly registered under the laws of all jurisdictions in which they its operations are incorporated, continued or amalgamated;
(b) The execution and delivery of, and performance by carried on except where the Corporation of this Agreement failure to be so registered would not have been authorized by all necessary corporate action a material adverse effect on the part operations of the Corporation;
(cb) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(hi) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part a reporting issuer not in default in any material respect of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issuedany requirement under Canadian Securities Laws, and will be outstanding as fully paid and non-assessable shares, and will (ii) not have been issued in violation of or subject to default in any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation material respect of any Applicable requirement under U.S. Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (iic) the Corporation has not taken any action which would reasonably be expected the requisite corporate power, authority and capacity to result in enter into this Agreement and to perform the delisting transactions contemplated herein and the Corporation has the requisite corporate power, authority and capacity to own its property and assets including licences or suspension of other similar rights and to carry on the Common Shares affairs customarily carried on by it and has all the requisite corporate power and authority to carry on its affairs as currently carried on or from the Exchange;
(l) as currently proposed to be carried on. The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation conducting its affairs in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each jurisdiction in which its affairs are carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns its property or carries on affairs to enable its affairs to be carried on as now conducted and its property and assets to be owned, except where such jurisdictionnon-compliance or failure to obtain such licence, registration or qualification would not have a material adverse effect on the affairs of the Corporation and all such licences, registrations and qualifications are valid and subsisting and in good standing;
(d) the Corporation has authorized share capital consisting of an unlimited number of Class A Shares and 50,000 Common Shares of which 40,000 Common Shares and 140,567,713 Class A Shares and no more are validly issued and outstanding as fully paid and non-assessable. No person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Corporation of any unissued shares of the Corporation except as otherwise referred to in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(e) except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements, to the best of the Corporation’s knowledge, there is no action, proceeding or investigation pending or threatened against the Corporation before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which is reasonably expected to result in any material change in the affairs or in the condition (financial or otherwise) of the Corporation or its properties or assets (taken as a whole), or which questions the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or as contemplated by the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(f) since July 31, 2008, there have been no changes in the assets or liabilities of the Corporation from the position thereof as set forth therein, except changes arising from transactions in the ordinary course of its affairs which, in the aggregate, have not been material to the Corporation and except for changes that are disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(g) the financial statements of the Corporation, including the notes thereto, incorporated in Disclosure Package, the Prospectus Supplements and the Registration Statement have been prepared in conformity with Canadian generally accepted accounting principles and in a manner that is consistent with U.S. generally accepted accounting principles and in accordance with the 1933 Act and the Rules, including the requirements of Form F-10, in each case applied on a consistent basis throughout the periods involved;
(h) the financial statements of the Corporation as incorporated by reference in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements present fairly in all material respects the financial position of the Corporation as at the dates of such statements;
(i) the Corporation is not in material violation of, and the execution and delivery of this Agreement and the performance by the Corporation of its obligations under this Agreement will not result in any material breach or, violation of, or be in material conflict with, or constitute a material default under, or create a state of facts which after notice or lapse of time, or both, would constitute a material default under any term or provision of the charter documents or by-laws of the Corporation or any resolution of the directors or shareholders of the Corporation or any material contract, mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, licence or regulation applicable to the Corporation;
(j) no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required of the Corporation in connection with the execution and delivery or with the performance by the Corporation of this Agreement except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements and compliance with the Applicable Securities Laws with regard to the distribution of the Underwritten Shares in the Qualifying Canadian Jurisdictions and the United States;
(k) this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and binding obligation of the Corporation, enforceable in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law and enforceability of paragraph 12 would be determined only in the discretion of a court;
(l) to the knowledge of the Corporation, no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the use or effectiveness of the Shelf Prospectuses, the Disclosure Package, the Prospectus Supplements, the Registration Statement or any Prospectus Amendment or preventing the distribution of the Underwritten Shares in any Qualifying Canadian Jurisdiction or the United States nor instituted proceedings for that purpose and, to the knowledge of the Corporation, no such proceedings are pending or contemplated;
(m) The information the Corporation is eligible in accordance with the provisions of National Instrument 44-101 to file a short form prospectus under National Instrument 44-102 with Canadian Securities Regulators;
(n) the Corporation is not, and upon consummation of the transactions contemplated hereby will not be, an “investment company” or an entity “controlled by an investment company” as such terms are defined in the United States Investment Company Act of 1940, as amended;
(o) CIBC Mellon Trust Company, at its principal office in the Cities of Calgary, Montreal, Toronto and Vancouver has been duly appointed as registrar and transfer agent for the Class A Shares in Canada, and BNY Mellon Shareowner Services, at its principal office in New York, has been duly appointed as registrar and transfer agent for the Class A Shares in the United States;
(p) to the knowledge of the Corporation, the Corporation is not a “related issuer” or “connected issuer” (as such terms are defined under the Canadian Securities Laws) of the Underwriter;
(q) the Corporation has prepared and filed with the SEC an appointment of agent for service of process upon the Corporation on Form F-X;
(r) the Corporation meets the general eligibility requirements for use of Form F-10 under the 1933 Act;
(s) as at their respective dates, the Canadian Shelf Prospectus does, and the Canadian Prospectus Supplement will, comply in all documents filed by material respects with the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) wasSecurities Laws and, at the time of such filingdelivery of the Underwritten Shares to the Underwriter, accurate the Canadian Prospectus Supplement will comply in all material respectsrespects with the Canadian Securities Laws;
(t) (i) the U.S. Shelf Prospectus conforms and the U.S. Prospectus Supplement will conform to the Canadian Shelf Prospectus and Canadian Prospectus Supplement, respectively, except for such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC under the 1933 Act (the “Rules”); (ii) the Registration Statement as amended or supplemented, on the Effective Date and on the date hereof did not contain any misrepresentation untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the U.S. Shelf Prospectus, the Corporation’s Form F-X and did the Registration Statement comply, and the U.S. Prospectus Supplement will comply, in all material respects with the 1933 Act and the Rules; (iv) the Disclosure Package does not, and at the Applicable Time, the time of each sale of the Class A Shares in connection with the offering when the U.S. Prospectus Supplement is not yet available to prospective purchasers and at the Closing Date will not, and the U.S. Shelf Prospectus as supplemented by the U.S. Prospectus Supplement as of its date and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Canadian Shelf Prospectus contains, and the Canadian Prospectus Supplement will contain, full, true and plain disclosure of all material facts required to be stated therein relating to the Corporation, the affairs of the Corporation, and the Underwritten Shares, and as of the date of its filing will contain no untrue statement of a material fact and will not omit to disclose state a material fact regarding the Corporation and its affairs that is necessary to make any material factstatement therein not misleading in light of the circumstances in which it was made; provided, except as subsequently corrected however, that this representation and warranty shall not apply to statements or updated omissions made in a subsequently filed document (reliance upon and in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All conformity with information relating to the businessUnderwriter furnished in writing to the Corporation by the Underwriter expressly for use in the Shelf Prospectuses, assetsthe Disclosure Package, liabilities, properties, capitalization the Prospectus Supplements or financial condition the Registration Statement;
(u) there are no reports or information that in accordance with the requirements of the Corporation provided Canadian Securities Regulators or the SEC must be made publicly available or filed in connection with the offering of the Underwritten Shares that have not been made publicly available or filed as required;
(v) the delivery by the Corporation of any signed Prospectus Amendment or material change report required to be filed under the Applicable Securities Laws will constitute a representation and warranty by the Corporation to the Underwriter that all the information and statements contained therein (except information and statements relating to the Underwriter) are true and correct and that no material information has been omitted therefrom which is necessary to make the statements contained therein not misleading;
(w) the Corporation is in material compliance with each material license held by it and is not in violation of, or in default in any material respect under, the applicable statutes, ordinances, rules, regulations, orders or decrees (including, without limitation, “Environmental Laws” as defined below) of any governmental entities, regulatory agencies or bodies asserting or claiming jurisdiction over it or over any part of its advisers affairs or assets, except for such violations and defaults which, singly or in the aggregate, would not have a material adverse effect on the assets or properties, affairs, prospects or condition (financial or otherwise) of the Corporation;
(x) to the Subscriber best of the knowledge of the Corporation, there are no foreign, federal, provincial, state or local laws or regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) which affect or otherwise have any application to the Corporation or its affairs, properties and assets (taken as a whole), or to which the Corporation is true, accurate otherwise subject. The Corporation does not require any license or other approval under any Environmental Laws to conduct its operations;
(y) there has not been any reportable event (within National Instrument No. 51-102) with the auditors of the Corporation;
(z) the Company shall use its best efforts to arrange for the listing and complete in all material respectsposting for trading of the Underwritten Shares on the Stock Exchanges on or before the Time of Closing; and
(naa) The the Corporation and its subsidiaries own all is using the net proceeds of the properties and assets that they purport to own offering of the Underwritten Shares for the purposes described in the Disclosure Record. Except as disclosed in Shelf Prospectuses and the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their termsPackage.
Appears in 1 contract
Samples: Underwriting Agreement (Central Fund of Canada LTD)
Representations and Warranties of the Corporation. The Corporation hereby represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriter and acknowledges and confirms that the Subscriber Underwriter is relying upon such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnits that:
(a) each of the Corporation and its Subsidiaries is a corporation duly incorporated, continued or amalgamated and validly existing under the laws of the jurisdiction in which it was incorporated, continued or amalgamated, as the case may be, and has all requisite corporate power and authority and is duly qualified and holds all necessary material permits, licences and authorizations necessary or required to carry on its business as now conducted and proposed to be conducted to own, lease or operate its properties and assets and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up;
(b) the Subsidiaries are the only subsidiaries of the Corporation. The Corporation does not beneficially own or exercise control or direction over 10% or more of the outstanding voting shares of any company that holds any assets or conducts any operations other than the Subsidiaries and the Corporation beneficially owns, directly or indirectly, the percentage indicated on Schedule “A” hereto of the issued and outstanding shares in the capital of the Subsidiaries which are free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and are validly issued and are outstanding as fully paid and non- assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of any of the Subsidiaries or any other security convertible into or exchangeable for any such shares;
(c) the Corporation has all requisite corporate power, authority and capacity to enter into each of this Agreement and the Warrant Indenture and to perform the transactions contemplated herein and therein, including, without limitation, to issue the Base Units, the Unit Shares, the Warrants, the Warrant Shares, the Additional Units, the Additional Shares, the Additional Warrants, the Underwriter’s Warrants and the Underwriter’s Warrant Shares;
(d) neither the Corporation nor any of the Subsidiaries is (i) in violation of its constating documents, or (ii) in default of the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, trust deed, joint venture, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it or its property may be bound, except in the case of clause (ii) for any such violations or defaults that would not result in a Material Adverse Effect;
(e) to the knowledge of the Corporation, no counterparty to any material obligation, agreement, covenant or condition contained in any contract, indenture, trust deed, mortgage, loan agreement, note, lease or other agreement or instrument to which the Corporation or any Subsidiary is a party is in default in the performance or observance thereof, except where such violation or default in performance would not have a Material Adverse Effect;
(f) each of the Corporation and the Subsidiaries has conducted and is conducting its business in compliance with all applicable Laws and regulations of each jurisdiction in which it carries on business, except where the failure to so comply would not have a Material Adverse Effect. The Corporation and each of the Subsidiaries holds all material requisite licences, registrations, qualifications, permits and consents necessary or appropriate for carrying on its subsidiaries business as currently carried on and all such licences, registrations, qualifications, permits and consents are corporations incorporated valid and existing subsisting and in good standing in all material respects. Without limiting the generality of the foregoing, neither the Corporation nor any Subsidiary has received a written notice of non-compliance, nor does it know of, nor have reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any such laws, regulations or permits which would have a Material Adverse Effect;
(g) the Corporation is in compliance in all material respects with all of the rules, policies and requirements of the TSX;
(h) other than the Leased Premises and except as disclosed in the Offering Documents, each of the Corporation and the Subsidiaries is the absolute legal and beneficial owner of, and has good and marketable title to, all of the material properties and assets thereof as described in the Offering Documents, including but not limited to the Owned Real Property, and no other property or assets are necessary for the conduct of the business of the Corporation and the Subsidiaries as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which each of the Corporation and Subsidiaries holds the material property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property (as hereinafter defined)) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such material properties and assets are in good standing under the laws applicable statutes and regulations of the jurisdictions in which they are incorporatedsituated, continued and all material leases, licenses and other agreements pursuant to which the Corporation or amalgamatedany Subsidiary derives the interests thereof in such property are in good standing. The Corporation does not know of any claim or the basis for any claim that might or could materially and adversely affect the right of the Corporation or any Subsidiary to use, transfer or otherwise exploit their respective assets, none of the properties (or any interest in, or right to earn an interest in, any property) of the Corporation or any Subsidiary is subject to any right of first refusal or purchase or acquisition right, and neither the Corporation nor any Subsidiary has a responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof;
(bi) with respect to each of the Leased Premises, the Corporation and the Subsidiaries, as applicable, occupies the Leased Premises and has the exclusive right to occupy and use the Leased Premises and each of the leases pursuant to which the Corporation or a Subsidiary occupies the Leased Premises is in good standing and in full force and effect, except where failure to be so would not reasonably be expected to result in a Material Adverse Effect. The performance of obligations pursuant to and in compliance with the terms of this Agreement and the completion of the transactions described herein by the Corporation, will not afford any of the parties to such leases or any other person the right to terminate such leases or result in any additional or more onerous obligations under such leases. The Corporation has provided the Underwriter with true and complete copies of all leases in respect of the Leased Premises;
(j) neither the Corporation nor any of the Subsidiaries owns any real property, other than the Owned Real Property;
(k) no legal or governmental proceedings or inquiries are pending to which the Corporation or any Subsidiary is a party or to which the property thereof is subject that would result in the revocation or modification of any certificate, authority, permit or license necessary to conduct the business now owned or operated by the Corporation or any Subsidiary which, if the subject of an unfavourable decision, ruling or finding could reasonably be expected to have a Material Adverse Effect and, to the knowledge of the Corporation, no such legal or governmental proceedings or inquiries have been threatened against or are contemplated with respect to the Corporation or any Subsidiary or with respect to the properties or assets thereof;
(l) there are no actions, suits, judgments, investigations or proceedings of any kind whatsoever outstanding, pending or, to the best of the Corporation’s knowledge, threatened against or affecting the Corporation or any Subsidiary, or the directors, officers or employees thereof, at law or in equity or before or by any commission, board, bureau or agency of any kind whatsoever and, to the best of the Corporation’s knowledge, there is no basis therefore and neither the Corporation nor any Subsidiary is subject to any judgment, order, writ, injunction, decree, award, rule, policy or regulation of any governmental authority, which, either separately or in the aggregate, may have a Material Adverse Effect or that would materially adversely affect the ability of the Corporation to perform its obligations under this Agreement and the Warrant Indenture;
(m) at the Closing Time or Option Closing Date, as applicable, all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Canadian Securities Laws necessary for the execution and delivery of, and performance by the Corporation of this Agreement and the Warrant Indenture, the creation, issuance and sale of the Warrants and Additional Warrants and the consummation of the transactions contemplated hereby and thereby, will have been made or obtained, as applicable (other than the filing of reports required under applicable Canadian Securities Laws within the prescribed time periods, which documents shall be filed as soon as practicable after the Closing Date and, in any event, within such deadline imposed by applicable Canadian Securities Laws);
(n) the authorized by all necessary corporate action on and issued and outstanding share capital of the part Corporation conforms to the description thereof contained in the Offering Documents. All of the issued and outstanding shares of the Corporation have been duly and validly authorized and issued as fully paid and non-assessable, and none of the outstanding common shares of the Corporation were issued in violation of the pre-emptive or similar rights of any securityholder of the Corporation;
(co) This Agreement has at the Closing Time, all necessary corporate action will have been duly executed and delivered taken by the Corporation to create, allot and constitutes a legalauthorize the issuance of, valid and binding agreement as applicable, the Units, Unit Shares, Warrants, Additional Units, Additional Shares, Additional Warrants, Underwriter’s Warrants and, upon the due conversion of the Corporation enforceable against it Warrants, the Additional Warrants and the Underwriter’s Warrants in accordance with its terms;
(d) The Corporation is not required to give any notice tothe provisions thereof, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Warrant Shares and preferred shares without par value of which 48,730,165 Common Underwriter’s Warrants Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting all such securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding validly issued as fully paid and non-assessable sharessecurities in the capital of the Corporation, and all such securities shall have the attributes corresponding in all material respects to the description thereof set forth in this Agreement;
(p) the terms and the number of options to purchase Common Shares granted by the Corporation currently outstanding, including but not limited to stock options and warrants, conforms to the description thereof contained in the Offering Documents and, other than as contemplated by this Agreement or otherwise disclosed in the Prospectus, no person, firm or corporation has any agreement or option, right or privilege (contractual or otherwise) capable of becoming an agreement (including convertible or exchangeable securities and warrants) for the purchase or acquisition from the Corporation or any Subsidiary of any interest in any Common Shares or other securities of the Corporation or any Subsidiary whether issued or unissued;
(q) there are no contracts or agreements between either the Corporation or a Subsidiary and any person granting such person the right to require the Corporation or the Subsidiary to file a registration statement under U.S. Securities Laws or, except as contemplated by this Agreement, a prospectus under Canadian Securities Laws, with respect to any securities of the Corporation or any Subsidiary owned or to be owned by such person that require the Corporation or a Subsidiary to include such securities in the securities qualified for distribution under the Offering Documents;
(r) except in relation to Epican Medicinals Ltd. and 9371-8633 Quebec Inc., there are no voting trusts or agreements, shareholders’ agreements, buy- sell agreements, rights of first refusal agreements, agreements relating to restrictions on transfer, pre-emptive rights agreements, tag-along agreements, drag-along agreements or proxies relating to any of the securities of the Corporation or the Subsidiaries, to which the Corporation or any of the Subsidiaries is a party;
(s) the Unit Shares, Additional Shares, Warrant Shares and Underwriter’s Warrant Shares to be issued as described in this Agreement and in the Offering Documents have been, or prior to the Closing Time will be, duly authorized and reserved for issuance and, when issued, delivered and paid for in full, will be validly issued and fully paid shares in the capital of the Corporation, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation;
(t) the Transfer Agent, at its principal office in Vancouver, British Columbia, is duly appointed as the registrar and transfer agent of the Corporation with respect to the Common Shares, and the Warrant Agent, at its principal office in Vancouver, British Columbia, will be, at the Closing Date, duly appointed as warrant agent with respect to the Warrants and Additional Warrants;
(u) at the Closing Time, each of this Agreement and the Warrant Indenture shall have been duly authorized and executed and delivered by the Corporation and upon such execution and delivery, each shall constitute a valid and binding obligation of the Corporation and each shall be enforceable against the Corporation in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, general principles of equity, and the qualifications that equitable remedies may only be granted in violation the discretion of any Applicable Securities a court of competent jurisdiction and except that rights of indemnity, contribution, waiver and the ability to sever unenforceable terms may be limited under applicable Laws;
(v) no authorization, approval, consent, licence, permit, order or filing of, or with, any Government Authority or court, domestic or foreign, (other than those which have already been obtained or will be obtained prior to the Closing Date and except for post-closing filings to be made with the TSX and post-closing distribution reports to be filed and other post-closing filings to be made with certain securities regulatory authorities) is required for the valid sale and delivery of the Units or for the execution and delivery or performance of this Agreement, the Warrant Indenture and the Offering Documents by the Corporation;
(w) each of the execution and delivery of this Agreement and the Warrant Indenture, the performance by the Corporation of its obligations hereunder and thereunder, the sale of the Units hereunder by the Corporation and the consummation of the transactions contemplated hereunder and thereunder,
(i) The Corporation is do not party and will not conflict with or subject to any agreement result in a breach or understanding and, to the knowledge violation of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), (A) any statute, rule, Law or regulation applicable to the Corporation’s securities;
; (j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (iB) the Common Shares constating documents, by-laws or resolutions of the Corporation which are currently listed and posted for trading on in effect at the Exchange and no date hereof; (C) any mortgage, note, indenture, contract, agreement, instrument, lease or other document to which the Corporation or any Subsidiary is a party or by which it is bound; or (D) any judgment, decree or order ceasing binding the Corporation or suspending trading, other than as publicly disclosed, in any securities the property or assets of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pendingSubsidiaries; and (ii) do not affect the Corporation has not taken rights, duties and obligations of any action parties to any mortgage, note, indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition of the Corporation provided by the Corporation or any of its advisers to the Subscriber is true, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their terms.o
Appears in 1 contract
Samples: Underwriting Agreement
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriter that, and acknowledges and confirms that the Subscriber Underwriter is relying upon upon, such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnderwritten Shares:
(a) The the Corporation is a company duly continued, organized and its subsidiaries are corporations incorporated and validly existing in good standing under the laws of Alberta and is properly registered under the laws of all jurisdictions in which they its operations are incorporated, continued or amalgamated;
(b) The execution and delivery of, and performance by carried on except where the Corporation of this Agreement failure to be so registered would not have been authorized by all necessary corporate action a material adverse effect on the part operations of the Corporation;
(cb) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(hi) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part a reporting issuer not in default in any material respect of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issuedany requirement under Canadian Securities Laws, and will be outstanding as fully paid and non-assessable shares, and will (ii) not have been issued in violation of or subject to default in any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation material respect of any Applicable requirement under U.S. Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (iic) the Corporation has not taken any action which would reasonably be expected the requisite corporate power, authority and capacity to result in enter into this Agreement and to perform the delisting transactions contemplated herein and the Corporation has the requisite corporate power, authority and capacity to own its property and assets including licences or suspension of other similar rights and to carry on the Common Shares affairs customarily carried on by it and has all the requisite corporate power and authority to carry on its affairs as currently carried on or from the Exchange;
(l) as currently proposed to be carried on. The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation conducting its affairs in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each jurisdiction in which its affairs are carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns its property or carries on affairs to enable its affairs to be carried on as now conducted and its property and assets to be owned, except where such jurisdictionnon-compliance or failure to obtain such licence, registration or qualification would not have a material adverse effect on the affairs of the Corporation and all such licences, registrations and qualifications are valid and subsisting and in good standing;
(d) the Corporation has authorized share capital consisting of an unlimited number of Class A Shares and 50,000 Common Shares of which 40,000 Common Shares and 152,467,713 Class A Shares and no more are validly issued and outstanding as fully paid and non-assessable. No person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Corporation of any unissued shares of the Corporation except as otherwise referred to in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(e) except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements, to the best of the Corporation’s knowledge, there is no action, proceeding or investigation pending or threatened against the Corporation before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which is reasonably expected to result in any material change in the affairs or in the condition (financial or otherwise) of the Corporation or its properties or assets (taken as a whole), or which questions the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or as contemplated by the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(f) since October 31, 2008, there have been no changes in the assets or liabilities of the Corporation from the position thereof as set forth therein, except changes arising from transactions in the ordinary course of its affairs which, in the aggregate, have not been material to the Corporation and except for changes that are disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(g) the financial statements of the Corporation, including the notes thereto, incorporated in Disclosure Package, the Prospectus Supplements and the Registration Statement have been prepared in conformity with Canadian generally accepted accounting principles and in a manner that is consistent with U.S. generally accepted accounting principles and in accordance with the 1933 Act and the Rules, including the requirements of Form F-10, in each case applied on a consistent basis throughout the periods involved;
(h) the financial statements of the Corporation as incorporated by reference in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements present fairly in all material respects the financial position of the Corporation as at the dates of such statements;
(i) the Corporation is not in material violation of, and the execution and delivery of this Agreement and the performance by the Corporation of its obligations under this Agreement will not result in any material breach or, violation of, or be in material conflict with, or constitute a material default under, or create a state of facts which after notice or lapse of time, or both, would constitute a material default under any term or provision of the charter documents or by-laws of the Corporation or any resolution of the directors or shareholders of the Corporation or any material contract, mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, licence or regulation applicable to the Corporation;
(j) no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required of the Corporation in connection with the execution and delivery or with the performance by the Corporation of this Agreement except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements and compliance with the Applicable Securities Laws with regard to the distribution of the Underwritten Shares in the Qualifying Canadian Jurisdictions and the United States;
(k) this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and binding obligation of the Corporation, enforceable in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law and enforceability of paragraph 11 would be determined only in the discretion of a court;
(l) the Underwritten Shares hereinbefore described have been, or prior to the Closing Time will be, duly authorized for issuance and, when a certificate for such shares is countersigned by the Canadian Transfer Agent and issued, delivered and paid for, such shares will be validly issued, fully paid and non-assessable and all statements made in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements describing such shares will be accurate in all material respects;
(m) The information in all documents filed the form of the share certificate representing the Class A Shares has been approved and adopted by the Corporation and complies with all applicable legal and regulatory requirements, including the requirements of the Toronto Stock Exchange;
(n) to the knowledge of the Corporation, no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the use or effectiveness of the Shelf Prospectuses, the Disclosure Package, the Prospectus Supplements, the Registration Statement or any Prospectus Amendment or preventing the distribution of the Underwritten Shares in any Qualifying Canadian Jurisdiction or the United States nor instituted proceedings for that purpose and, to the knowledge of the Corporation, no such proceedings are pending or contemplated;
(o) the Corporation is eligible in accordance with the provisions of National Instrument 44-101 to file a short form prospectus under National Instrument 44-102 with Canadian securities regulatory authorities Securities Regulators;
(including p) the Corporation is not, and upon consummation of the transactions contemplated hereby will not be, an “investment company” or an entity “controlled by an investment company” as such terms are defined in the United States Investment Company Act of 1940, as amended;
(q) CIBC Mellon Trust Company, at its principal office in the Cities of Calgary, Montreal, Toronto and Vancouver has been duly appointed as registrar and transfer agent for the Class A Shares in Canada, and Mellon Investor Services LLC, at its principal office in New York, has been duly appointed as registrar and transfer agent for the Class A Shares in the United States;
(r) to the knowledge of the Corporation, the Corporation is not a “related issuer” or “connected issuer” (as such terms are defined under the Canadian Securities Laws) of the Underwriter;
(s) the Corporation has prepared and filed with the SEC an appointment of agent for service of process upon the Corporation on Form F-X;
(t) the Corporation meets the general eligibility requirements for use of Form F-10 under the 1933 Act;
(u) as at their respective dates, the Canadian Shelf Prospectus does, and the Canadian Prospectus Supplement will, comply in all documents filed at xxx.xxxxx.xxx) (material respects with the “Disclosure Record”) wasCanadian Securities Laws and, at the time of such filingdelivery of the Underwritten Shares to the Underwriter, accurate the Canadian Prospectus Supplement will comply in all material respectsrespects with the Canadian Securities Laws;
(v) (i) the U.S. Shelf Prospectus conforms and the U.S. Prospectus Supplement will conform to the Canadian Shelf Prospectus and Canadian Prospectus Supplement, respectively, except for such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC under the 1933 Act (the “Rules”); (ii) the Registration Statement as amended or supplemented, on the Effective Date and on the date hereof did not and does not contain any misrepresentation untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the U.S. Shelf Prospectus, the Corporation’s Form F-X and did the Registration Statement comply, and the U.S. Prospectus Supplement will comply, in all material respects with the 1933 Act and the Rules; (iv) the Disclosure Package does not, and at the Applicable Time, the time of each sale of the Class A Shares in connection with the offering when the U.S. Prospectus Supplement is not yet available to prospective purchasers and at the Closing Date will not, and the U.S. Shelf Prospectus as supplemented by the U.S. Prospectus Supplement as of its date and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Canadian Shelf Prospectus contains, and the Canadian Prospectus Supplement will contain, full, true and plain disclosure of all material facts required to be stated therein relating to the Corporation, the affairs of the Corporation, and the Underwritten Shares, and as of the date of its filing will contain no untrue statement of a material fact and will not omit to disclose state a material fact regarding the Corporation and its affairs that is necessary to make any material factstatement therein not misleading in light of the circumstances in which it was made; provided, except as subsequently corrected however, that this representation and warranty shall not apply to statements or updated omissions made in a subsequently filed document (reliance upon and in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All conformity with information relating to the businessUnderwriter furnished in writing to the Corporation by the Underwriter expressly for use in the Shelf Prospectuses, assetsthe Disclosure Package, liabilities, properties, capitalization the Prospectus Supplements or financial condition the Registration Statement;
(w) there are no reports or information that in accordance with the requirements of the Corporation provided Canadian Securities Regulators or the SEC must be made publicly available or filed in connection with the offering of the Underwritten Shares that have not been made publicly available or filed as required;
(x) the delivery by the Corporation of any signed Prospectus Amendment or material change report required to be filed under the Applicable Securities Laws will constitute a representation and warranty by the Corporation to the Underwriter that all the information and statements contained therein (except information and statements relating to the Underwriter) are true and correct and that no material information has been omitted therefrom which is necessary to make the statements contained therein not misleading;
(y) the Corporation is in material compliance with each material license held by it and is not in violation of, or in default in any material respect under, the applicable statutes, ordinances, rules, regulations, orders or decrees (including, without limitation, “Environmental Laws” as defined below) of any governmental entities, regulatory agencies or bodies asserting or claiming jurisdiction over it or over any part of its advisers affairs or assets, except for such violations and defaults which, singly or in the aggregate, would not have a material adverse effect on the assets or properties, affairs, prospects or condition (financial or otherwise) of the Corporation;
(z) to the Subscriber best of the knowledge of the Corporation, there are no foreign, federal, provincial, state or local laws or regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) which affect or otherwise have any application to the Corporation or its affairs, properties and assets (taken as a whole), or to which the Corporation is true, accurate otherwise subject. The Corporation does not require any license or other approval under any Environmental Laws to conduct its operations;
(aa) there has not been any reportable event (within National Instrument 51-102) with the auditors of the Corporation;
(bb) the Company shall use its best efforts to arrange for the listing and complete in all material respectsposting for trading of the Underwritten Shares on the Stock Exchanges on or before the Time of Closing; and
(ncc) The the Corporation and its subsidiaries own all is using the net proceeds of the properties and assets that they purport to own offering of the Underwritten Shares for the purposes described in the Disclosure Record. Except as disclosed in Shelf Prospectuses and the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their termsPackage.
Appears in 1 contract
Samples: Underwriting Agreement (Central Fund of Canada LTD)
Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with each Purchaser that as follows to of the Subscriber at date hereof and as of the Closing Date:
(a) The authorized capital stock of the Corporation consists of 100,000,000 shares of Common Stock of which 48,415,358 shares of Common Stock are outstanding as of the date of this Agreement.
(b) Since December 31, 2008, the Corporation has filed all material reports, registrations and statements, together with any required amendments thereto, that it was required to file with the Securities and Exchange Commission (the "SEC") and any other applicable federal or state securities authorities. All such reports and statements filed with any such regulatory body or authority are collectively referred to herein as the "Corporation Reports." As of their respective dates, the Corporation Reports complied as to form in all material respects with all the rules and regulations promulgated by the SEC and any other applicable foreign, federal or state securities authorities, as the case may be.
(c) Except as previously disclosed in writing to the Purchasers, since December 31, 2008, no change has occurred and no circumstances exist (including any changes, occurrences, circumstances or facts existing prior to December 31, 2008 but which become known on or after December 31, 2008) that is not disclosed in the Disclosure Materials (as defined below) which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect.
(d) The Corporation has all permits, licenses, authorizations, orders and approvals of, and has made all filings, applications and registrations with, any governmental entities that are required in order to carry on its business as presently conducted and that are material to the business of the Corporation, except where the failure to have such permits, licenses, authorizations, orders and approvals or the failure to make such filings, applications and registrations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and all such permits, licenses, certificates of authority, orders and approvals are in full force and effect and, to the knowledge of the Corporation, no suspension or cancellation of any of them is threatened, and all such filings, applications and registrations are current.
(e) Each of the following publicly filed documents is available via the EXXXX system to the Purchaser: (i) the Corporation's Annual Report on Form 10-K for the year ended June 30, 2008, as amended by Amendment No. 1 on Form 10-K/A as filed on March 19, 2009; (ii) the Corporation's Quarterly Reports on Form 10-Q for each of the quarters ended March 31, 2009, December 31, 2008 and September 30, 2008; (iii) the Corporation's proxy statement for its Annual Meeting of Stockholders held on February 12, 2009; and (iv) the Corporation's Current Reports on Form 8-K filed with the SEC since December 31, 2008, pursuant to the reporting requirements of the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act") (items (i) through (iv) collectively, the "Disclosure Materials"), which Disclosure Materials include, among other things, the Agreement and at Plan of Merger by and between Patriot Capital Funding, Inc. and the Time Corporation, dated as of Closing August 3, 2009, audited consolidated balance sheets of the Corporation as of June 30, 2008 and acknowledges 2007 and confirms that the Subscriber is relying related consolidated statements of operations, changes in net assets and cash flow for each of the three years in the period ended June 30, 2008. As of the date hereof, each of the documents comprising a part of the Disclosure Materials, when such documents are considered together as a whole, did not contain or will not contain any untrue statement of material fact or omitted to state or will not omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) Based in part upon such the representations and warranties of each Purchaser contained herein, the Corporation is not required by applicable law or regulation in connection with the offer, sale and issuance delivery of the Subscribed Shares to the Subscriber:Purchasers in the manner contemplated by this Agreement to register the Shares under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities laws.
(ag) The Corporation and its subsidiaries are corporations Corporation, (i) has been duly incorporated and is validly existing in good standing under the laws of the jurisdictions its jurisdiction of incorporation, (ii) is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which they are incorporatedits ownership or lease of property or the conduct of its businesses requires such qualification, continued except where the failure to be so qualified would not result in any material adverse change in the condition, financial or amalgamated;
(b) The execution otherwise, or in the earnings or business affairs of the Corporation, or which would not materially and delivery ofadversely affect the assets or properties of the Corporation, or which would not materially and performance by adversely affect the ability of the Corporation to perform its obligations under the Transaction Documents (individually or in the aggregate, a "Material Adverse Effect," except that the mere filing of any action, claim, suit or order relating to any actual or threatened litigation involving the Corporation or any of its employees after the date of this Agreement have been authorized by (rather than the actual facts and circumstances underlying such action, claim, suit or order) shall not be deemed a Material Adverse Effect); and (iii) has all corporate power and authority necessary corporate action on to own or hold its respective properties and to conduct the part businesses in which it is currently engaged.
(h) All of the Corporation;
(c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement issued shares of capital stock of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice tohave been duly and validly authorized and issued, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are assessable and no other equity or voting securities such shares were issued in violation of the Corporation outstandingpreemptive or similar rights of any security holder of the Corporation. Except as disclosed in the Disclosure Materials, and no person has any preemptive or similar statutory or contractual right to purchase any shares of capital stock of the Corporation. Except as disclosed in the Disclosure Materials, there are no outstanding stock optionswarrants, warrants options or other convertible securities rights to subscribe for or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to purchase any of the Credit Agreement. The fully diluted share Corporation's capital stock and no restrictions upon the voting or transfer of any capital stock of the Corporation pursuant to the Corporation's charter or bylaws or any agreement or other instrument to which the Corporation is 51,291,665 Common Shares;a party or by which the Corporation is bound.
(hi) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of therefor in the consideration thereof pursuant to manner contemplated by this Agreement, will have been be validly issued, and will be outstanding as fully paid and non-assessable sharesassessable, free from all taxes, liens and charges with respect to the issue thereof, and the issuance of the Shares will not obligate the Corporation to issue shares of capital stock to any person.
(j) This Agreement and the Registration Rights Agreement have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued duly authorized, executed and delivered by the Corporation and constitute a valid and legally binding agreement of the Corporation enforceable against the Corporation in accordance with their terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and general equitable principles (whether considered in violation a proceeding in equity or at law).
(k) The execution, delivery and performance of any Applicable Securities Laws;
this Agreement and the Registration Rights Agreement, the issuance and sale of the Shares in the manner contemplated hereby, and the consummation of the Transactions, will not (i) The conflict with or constitute a violation of, or default (with the passage of time or the delivery of notice) under, (A) any bond, debenture, note or other evidence of indebtedness, or any agreement, lease, franchise, license, permit, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which the Corporation is not a party or subject by which it or its property is bound, where such conflict, violation or default would reasonably be expected to any agreement have a Material Adverse Effect, or understanding and, (B) to the knowledge of the Corporation, there any law, administrative regulation, ordinance or judgment, order or decree of any court or governmental agency, arbitration panel or authority binding upon the Corporation or any of its property, where such conflict, violation or default would reasonably be expected to have a Material Adverse Effect, or (ii) violate any of the provisions of the Articles of Amendment and Restatement, or Amended and Restated Bylaws, of the Corporation; and no consent, approval, authorization or order of, or filing or registration with any such person (including, without limitation, any such court or governmental agency or body) is no agreement between any shareholders required for the consummation of the Transactions by the Corporation, except such as may be required under state securities laws or officers Regulation D under the Securities Act, or directors required by The NASDAQ Stock Market ("NASDAQ").
(l) The audited consolidated financial statements (including the related notes) included or incorporated in the Disclosure Materials present fairly, in all material respects, the financial condition and results of operations of the Corporation, that affects or relates to at the voting or giving of written consents with respect to any of dates and for the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcyperiods indicated, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian been prepared in conformity with U.S. generally accepted accounting principles;principles applied on a consistent basis throughout the periods involved.
(km) The Corporation is a reporting issuer Except as disclosed in the Provinces of OntarioDisclosure Materials or as previously disclosed to the Purchasers, British Columbia and Albertathere is no action, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing suit or suspending trading, other than as publicly disclosed, in proceeding before or by any securities of the Corporation court or prohibiting the sale governmental agency or issuance of the Subscribed Shares body or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened labor dispute now pending or, to the knowledge of the Corporation, are pending; and (ii) threatened against the Corporation has not taken any action Corporation, which would reasonably be expected to result have a Material Adverse Effect.
(n) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Transactions is in effect nor has any action been filed or is any proceeding pending that seeks any such event.
(o) Except for payments made or to be made to the Corporation's placement agent, no broker's, finder's, investment banker's or similar fee or commission has been paid or will be payable by the Corporation with respect to, or for any services rendered to the Corporation ancillary to, the offer, issue and sale of the Shares contemplated by this Agreement. Any such fee or commission shall be payable by the Corporation and not any of the Purchasers.
(p) Except as set forth in the delisting Disclosure Materials, the Corporation does not own or suspension of the Common Shares on control, directly or from the Exchange;indirectly, any "Significant Subsidiary" as defined in SEC Regulation S-X.
(lq) The Corporation is licensedhas filed on a timely basis all material federal, registered state, local and foreign income and franchise tax returns required to be filed by it through the date hereof or qualified had properly requested extension thereof and has paid all material taxes shown as an extra-provincial due thereon, and any related material assessments, fines or foreign corporation in all jurisdictions penalties, except where the character failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Corporation has made reasonably adequate charges, accruals and reserves in the applicable financial statements referred to in this Section 4.1(q) in respect of all federal, state, local and foreign income and franchise taxes for all periods as to which the tax liability of the property Corporation has not been finally determined. The Corporation has no knowledge of a material tax deficiency which has been or assets thereof owned is reasonably likely to be asserted or leased or threatened against it.
(r) To its knowledge, the nature of the activities conducted by it make licensing, registration or qualification necessary and Corporation is carrying on the business thereof in material compliance with all applicable laws, rules, regulations, orders, decrees and judgments applicable to it, including, without limitation, the Investment Company Act of 1940, as amended, and the rules promulgated thereunder, all applicable local, state and federal environmental laws and regulations and the provisions of the Sxxxxxxx-Xxxxx Act of 2002, as amended ("Sxxxxxxx-Xxxxx Act") and the applicable federal and state banking laws, rules and regulations, together with the Sxxxxxxx-Xxxxx Act, the "Applicable Laws"), except where failure to be so in compliance would not have a Material Adverse Effect. The Corporation has not received any notice of purported or actual non-compliance with Applicable Laws, except to the extent it would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Corporation has not received any communication from any Governmental Authority threatening to revoke any permit, license, franchise, certificate of authority or other governmental authorization.
(s) To its knowledge, the Corporation's Common Stock is in compliance with all the requirements of NASDAQ for continued listing of the Common Stock thereon. Furthermore, the Corporation has taken no action designed to, or reasonably likely to have the effect of, terminate the registration of the Common Stock under the Exchange Act or de-listing the Common Stock from NASDAQ, nor has the Corporation received any notification that the SEC or NASDAQ is contemplating terminating such registration or listing.
(t) The Corporation maintains insurance (issued by insurers of recognized financial responsibility) of the types, against such losses and in the amounts, with such insurers and subject to deductibles and exclusions as are customary in the Corporation's industry and otherwise reasonably prudent, including, without limitation, insurance covering all real and personal property owned or leased by the Corporation against theft, damage, destruction, acts of vandalism and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect.
(u) The Corporation has satisfied the conditions for use of Form N-2 as set forth in the General Instructions to such Form.
(v) The Corporation has not taken, directly or indirectly, any action designed to or that would constitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Corporation to facilitate the sale or resale of the Shares.
(w) None of the Corporation, any of its affiliates, and any Person acting on its behalf, including the Corporation's placement agent has, directly or indirectly, made any offers or sales of the Shares or solicited any offers to buy the Shares, under circumstances that would require registration of the Shares under the Securities Act. None of the Corporation, any of its affiliates, and any Person acting on its behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security under circumstances that would cause this offering of the Shares to be integrated with prior offerings by the Corporation for purposes of the Securities Act or any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of each such jurisdiction;
(m) The information in all documents filed by any exchange or automated quotation system on which any of the securities of the Corporation with Canadian securities regulatory authorities (including are listed or designated. None of the Corporation, its affiliates and any Person acting on its behalf will take any action or steps referred to in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at preceding sentence that would require registration of any of the time Shares under the Securities Act. For the purposes of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business"Person" shall mean any individual, assetscorporation, liabilitiespartnership, propertiesjoint venture, capitalization limited liability company, business trust, joint stock corporation, trust or financial condition of the Corporation provided by the Corporation unincorporated organization or any of its advisers to the Subscriber is true, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation government or its subsidiaries holds an interest in a property agency or asset are in good standing in all material respects according to their termspolitical subdivision thereof.
Appears in 1 contract
Representations and Warranties of the Corporation. The Corporation hereby represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing and acknowledges and confirms that the Subscriber is relying upon such representations and warranties in connection with the offer, sale and issuance of the Subscribed Shares to the SubscriberPurchaser that:
(a) The the Corporation and its subsidiaries are corporations is a corporation incorporated and existing in good standing subsisting under the laws of the Province of Ontario, has all legal capacity and requisite corporate power to own its properties and to conduct its business as it is presently being conducted, and is duly registered or otherwise qualified to carry on business in all jurisdictions in which they are incorporated, continued the nature of its assets or amalgamatedbusiness makes such registration or qualification necessary or advisable;
(b) The execution the Corporation’s Subsidiaries are corporations properly formed and delivery ofsubsisting under the laws of their respective jurisdictions of incorporation, have all legal capacity and requisite corporate power to own their respective properties and conduct their respective businesses as presently being conducted by them, and performance by are duly registered or otherwise qualified to carry on business in all jurisdictions in which the Corporation nature of this Agreement have been authorized by all their assets or businesses make such registration or qualification necessary corporate action on the part of the Corporationor advisable;
(c) This to the best of its knowledge and belief, the NP Vendors are the registered and beneficial owners of approximately 80.1% of the issued and outstanding Corporation Shares, which Corporation Shares constitute approximately 80.1% of the issued and outstanding shares in the capital of the Corporation, free and clear of all liens, charges, pledges, security interests, demands, adverse claims, rights or any other encumbrances whatsoever and no Person has any right, option, agreement or arrangement capable of becoming an agreement for the acquisition of any of the Corporation Shares or any interest therein from the NP Vendors;
(d) the Corporation has the full legal capacity and corporate power to enter into this Agreement and to take, perform or execute all proceedings, acts and instruments necessary or advisable to consummate the other actions and transactions contemplated in this Agreement and to fulfill their respective obligations under this Agreement;
(e) this Agreement has been duly executed and delivered by the Corporation and this Agreement constitutes a legal, valid and binding agreement obligation of the Corporation enforceable against it the Corporation in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorizationexcept as such terms may be limited by bankruptcy, order insolvency, re-organization or other consent or approval laws relating to the enforcement of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Sharescreditors’ rights generally;
(f) Computershare Trust Company neither the execution, nor delivery of Canada at its offices this Agreement, nor the consummation of the transactions contemplated hereby, nor compliance with and fulfillment of the terms and provisions of this Agreement will:
(i) conflict with or result in a breach of the city terms, conditions or provisions of, or constitute a default under:
(1) any of Vancouverthe constating documents or by-laws of the Corporation; or
(2) any instrument, agreement, mortgage, judgment, order, award, decree or other instrument or restriction to which the Corporation is a party or by which the duly appointed registrar and transfer agent Corporation is bound; and
(ii) except as otherwise described herein, require any affirmative approval, consent, authorization or other order or action by any court, governmental authority or regulatory body or by any creditor of the Corporation with respect or any party to any agreement to which the Common Shares (Corporation is a party or by which the “Transfer Agent”)Corporation is bound, except as shall have been obtained prior to Closing;
(g) The no person, firm or corporation has any agreement or option or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, including convertible securities, warrants or convertible obligations of any nature, for the purchase of any unissued shares in the securities of the Corporation;
(h) the authorized capital of the Corporation consists of is an unlimited number of Common Shares and preferred common shares without par value of which 48,730,165 Common Shares 1,000,000 shares are presently validly issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued shares in violation the capital of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities LawsCorporation;
(i) The the books and records of the Corporation is fairly and correctly set out and disclose in all material respects, the financial position of the Corporation as at the dates thereof and all material financial transactions of the Corporation relating to the Corporation’s Business have been accurately recorded in such books and records;
(j) the Corporation does not party have any of its records, systems, controls, data or subject information recorded, stored, maintained, operated or otherwise wholly or partly dependent upon or held by any means (including any electronic, mechanical or photographic process, whether computerized or not) which (including all means of access thereto and therefrom) are not under the exclusive ownership and direct control of the Corporation;
(k) save and except for matters which are disclosed in the Corporation’s Financial Statements or otherwise expressly set out in this Agreement, neither the Corporation nor the Corporation’s Subsidiaries have (nor has either agreed to):
(i) incurred any debts, obligations or liabilities (absolute, accrued, contingent or otherwise and whether due or to become due), except debts, obligations and liabilities incurred in the ordinary course of business;
(ii) discharged or satisfied any liens or paid any obligation or liability other than liabilities shown on the Corporation’s Financial Statements, other than in the ordinary course of business;
(iii) declared or made any payment, distribution or dividend based on its shares or purchased, redeemed or otherwise acquired any of the shares in its capital or other securities or obligated itself to do so;
(iv) mortgaged, pledged or subjected to lien or other security interest any of its assets, tangible or intangible other than the usual security granted to secure a bank line of credit;
(v) sold, assigned, leased, transferred or otherwise disposed of any of its assets (excluding inventory) having either a book value or fair market value in excess of $5,000.00, whether or not in the ordinary course of business;
(vi) increased materially the compensation payable or to become payable by the Corporation or the Corporation’s Subsidiaries to any agreement of its officers, directors or understanding andemployees, or in any bonus payment to or arrangement made with any officer, director or employee, or made any material changes in the personnel policies or employee benefits of the Corporation or the Corporation’s Subsidiaries;
(vii) cancelled, waived, released or compromised any debt, claim or right resulting in a material adverse effect on the business, prospects or financial condition of the Corporation or the Corporation’s Subsidiaries;
(viii) significantly altered or revised any of its accounting principles, procedures, methods or practices;
(ix) changed its credit policy as to provision of services, sales of inventories or collection or accounts receivable except as dictated by competitive conditions;
(x) suffered any material damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting the properties, business or prospects of the Corporation or the Corporation’s Subsidiaries;
(xi) entered into any transaction, contract or commitment other than in the ordinary course of business except for the transactions set forth in this Agreement;
(xii) issued or sold any shares in its capital stock or other securities, or granted any options with respect thereto; or
(xiii) suffered or experienced any material adverse change in, or event or circumstance affecting, the condition (financial or otherwise) of its properties, assets, liabilities, earnings, business, operations or and the Corporation has no knowledge, information or belief of any fact, event or circumstances which might reasonably be expected to affect materially and adversely the condition (financial or otherwise) of its properties, assets, liabilities, earnings, business operations or prospects and it has not changed any shares of its capital stock, whether by way of reclassification, stock split or otherwise;
(l) the Corporation’s Financial Statements fairly present the financial position of the Corporation as at the date thereof and fairly present the results of operations for the periods ended on such dates, all in accordance with Generally Accepted Accounting Principles consistently applied throughout the period covered thereby, save and except as stated therein. The Corporation’s and the Corporation’s Subsidiaries’ books of account reflect items of income and expense and all assets and liabilities and accruals required to be reflected therein;
(m) the corporate records and minute books of the Corporation as provided to the knowledge Purchaser or its legal counsel contain complete and accurate minutes of all meetings of and corporate actions or written consents by the directors and shareholders of the Corporation, there is no agreement between any including all by-laws and resolutions passed by the board of directors and shareholders or officers or directors of the Corporation since the incorporation of the Corporation and all such meetings were duly called and held;
(n) neither the Corporation nor the Corporation’s Subsidiaries operates or engages in any business activities, that affects operations or relates management of any nature or kind whatsoever other than the Corporation’s Business;
(o) except as expressly referred to in the voting Corporation’s Financial Statements,
(i) none of the Corporation or giving of written consents with respect to the Corporation’s Subsidiaries have outstanding any bonds, debentures, mortgages, notes or other similar indebtedness or liabilities whatsoever and neither the Corporation nor any of the Corporation’s securities;Subsidiaries is bound under any agreement to create, issue or incur any bonds, debentures, mortgages, notes or other similar indebtedness or liabilities whatsoever; and
(jii) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of neither the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of nor any of the Corporation’s issued securities Subsidiaries is a party to or bound by any agreement of guarantee, indemnification, assumption or endorsement or any other like commitment of the obligations, liabilities (contingent or otherwise) or indebtedness of any other person.
(p) since incorporation, no payments have been made or authorized by the Corporation or the Corporation’s Subsidiaries to their officers, directors, employees, shareholders or former directors, officers, employees or shareholders or to any person not dealing at Arm’s Length with any of the foregoing, except those expressly disclosed herein, reflected in the Corporation’s Financial Statements or made in the ordinary course of business and at the regular rates payable to them of salary, pension, bonuses or other remuneration of any nature;
(q) the Corporation and the Corporation’s Subsidiaries have filed all tax returns required to be filed by them prior to the date hereof in all applicable jurisdictions and have paid, collected and remitted all taxes, customs duties, tax installments, levies, assessments, reassessments, penalties, interest and fines due and payable, collectible or remittable by them at present. All such tax returns properly reflect, and do not in any respect understate the income, taxable income or the liability for taxes of the Corporation and the Corporation’s Subsidiaries in the relevant period and the liability of the Corporation and the Corporation’s Subsidiaries for the collection, payment and remittance of tax under applicable Tax Laws;
(r) adequate provision has been issued made in the Corporation’s Financial Statements for all taxes, governmental charges and assessments, including interest and penalties thereon, payable by the Corporation and the Corporation’s Subsidiaries for all periods up to the date of the balance sheets comprising part of the Corporation’s Financial Statements;
(s) the Corporation and the Corporation’s Subsidiaries have withheld and remitted all amounts required to be withheld and remitted by it in respect of any taxes, governmental charges or assessments in respect of any taxable year or portion thereof up to and including December 31, 2010;
(t) there are no (formal actions, suits or informal) proceedings for such purpose have been threatened orother proceedings, investigations or claims in progress or pending and, to the knowledge best of the Corporation’s belief and knowledge, there are pending; and no actions, suits or other proceedings or investigations or claims threatened, against the Corporation or any of the Corporation’s Subsidiaries in respect of any taxes, governmental charges or assessments. No waivers have been filed by the Corporation or the Corporation’s Subsidiaries with any taxing authority;
(iiu) the Corporation has not taken any action which would reasonably be expected to result and the Corporation’s Subsidiaries are conducting and have always conducted the Corporation’s Business in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material substantial compliance with all applicable laws, rules and regulations of each jurisdiction in which the Corporation’s Business is carried on, is not currently in breach of any such jurisdiction;
(m) The information laws, rules or regulations and is duly licenced, registered or qualified, in all documents filed by the Corporation with Canadian securities regulatory authorities (including each jurisdiction in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition of the Corporation provided by which the Corporation or any of the Corporation’s Subsidiaries owns or leases property or carries on the Corporation’s Business, to enable the Corporation’s Business to be carried on as now conducted and its advisers 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 may have an adverse effect on the operation of the Corporation’s Business;
(v) to the Subscriber is truebest of its knowledge and belief, accurate and complete all private placements of Corporation Shares have been completed in accordance with all material respects; andapplicable securities regulations;
(nw) The Corporation and its subsidiaries own all no employee has made any claim or, to the best of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure RecordCorporation’s knowledge, all agreements by which has any basis for any action or proceeding against the Corporation or its subsidiaries any of the Corporation’s Subsidiaries, arising out of any statute, ordinance or regulation relating to discrimination in employment or employment practices, harassment, occupational health and safety standards or worker’s compensation;
(x) neither the Corporation nor any of the Corporation’s Subsidiaries has made any agreements with any labour union or employee association nor made any commitments to or conducted any negotiations with any labour union or employee association with respect to any future agreements;
(y) no trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent holds an interest bargaining rights with respect to any of the employees or the Corporation or any of the Corporation’s Subsidiaries by way of certification, interim certification, voluntary recognition, designation or successor rights;
(z) there is no action, lawsuit, claim, proceeding, or investigation pending or, to the best knowledge of the Corporation, threatened against, relating to or affecting the Corporation or the Corporation’s Subsidiaries before any court, government agency, or any arbitrator of any kind. The Corporation is not aware of any existing ground on which any such proceeding might be commenced with any reasonable likelihood of success and there is not presently outstanding against the Corporation or the Corporation’s Subsidiaries any judgment, decree, injunction, rule or order of any court, governmental agency, or arbitrator relating to or affecting the Corporation, the Corporation’s Subsidiaries, the Corporation’s Assets or the Corporation’s Business;
(aa) there is not now outstanding any arrangement (contractual or otherwise) between the Corporation or Corporation’s Subsidiaries and any Person which will or may be, terminated or, to the best knowledge of the Corporation, prejudicially affected as a result of the NP Vendors’ transfer and sale of the Corporation Shares to the Purchaser in exchange for the Exchange Shares as contemplated herein;
(bb) no representation or warranty made by the Corporation in this Agreement and no statement made in any schedule, exhibit, certificate or other document furnished pursuant to this Agreement, contains, or will contain, any untrue statement of a property Material Fact or asset are in good standing in all material respects according omits, or will omit, to their termsstate any Material Fact necessary to make such representation or warranty or any such statement not misleading. The Corporation does not know of any fact which, if known to the NP Vendors would deter them from consummating the transactions contemplated herein.
Appears in 1 contract
Samples: Share Exchange Agreement (InterAmerican Gaming, Inc.)
Representations and Warranties of the Corporation. The Corporation hereby represents and warrants as follows to for the Subscriber at the date of this Agreement and at the Time of Closing and acknowledges and confirms that the Subscriber is relying upon such representations and warranties in connection with the offer, sale and issuance benefit of the Subscribed Shares to the SubscriberSubscribers as follows:
(a) The Corporation and its subsidiaries are corporations incorporated and existing in good standing under the laws of the jurisdictions in which they are incorporated, continued or amalgamated;
(b) The execution and delivery of, and performance by the Corporation of this Agreement have been authorized by all necessary corporate action on the part of the Corporation;
(c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(kTime) The Corporation is a reporting issuer in the Provinces of Ontario, Alberta and British Columbia and AlbertaColumbia, and is in compliance with all material obligations under Applicable Securities Laws of such jurisdictions;
(i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (iib) the Corporation has not taken any action which would reasonably be expected to result in been duly incorporated and organized and is validly subsisting under the delisting or suspension laws of the Common Shares Province of Ontario and has all requisite corporate power and authority to own its assets and to carry on or from the Exchangeits business as currently conducted;
(lc) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character each of the property or assets thereof owned or leased or Material Subsidiaries has been duly incorporated and organized and is validly subsisting under the nature laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and to own, lease and operate its properties and assets;
(d) the Corporation and each of the activities conducted by it make licensing, registration or qualification necessary and Material Subsidiaries is carrying on the conducting its business thereof in material compliance 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 jurisdictionlicences, registrations and qualifications are and will at the Closing Time be valid, subsisting and in good standing, except in respect of matters which do not and will not result in any adverse material change in respect of the Corporation, and except for the failure to be so qualified or the absence of any such license, registration or qualification which does not and will not have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and its subsidiaries, on a consolidated basis;
(ma) The information in the Corporation has all documents filed required corporate power and authority to enter into and carry out the provisions of this subscription agreement and the transactions contemplated hereby and all necessary corporate action has been taken or will have been taken prior to the Closing Time by the Corporation with Canadian securities regulatory authorities to duly authorize the execution and delivery of this subscription agreement and such other agreements and instruments and the consummation of the transactions contemplated thereby and so as to validly create, issue and deliver the Debentures subscribed thereby and to validly create and irrevocably allot for issuance the Underlying Securities and Warrant Shares;
(including b) neither the Corporation nor any of its Material Subsidiaries is in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate default or in all material respects, did not contain any misrepresentation and did not omit to disclose breach in any material factrespect of, except as subsequently corrected or updated in a subsequently filed document (in and the execution and delivery of this Agreementsubscription agreement by the Corporation, “misrepresentation” the performance and “material fact” have them meanings ascribed to them in compliance with the Securities Act (British Columbia)). All information relating to terms of this subscription agreement, the business, assets, liabilities, properties, capitalization or financial condition issue and sale of the Corporation provided by Debentures, and the issue of the Underlying Securities and Warrant Shares will not result in any breach of, or be in conflict with or constitute a default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a default either directly or indirectly under any term or provision of the constating documents, by-laws or resolutions of the Corporation or any of the Material Subsidiaries or any material mortgage, note, indenture, contract, agreement, instrument, lease or other document to which any of them is a party or by which any of them is bound;
(c) the Common Shares issuable upon exercise of the conversion rights under its advisers Debentures and the Warrant Shares, if and when issued in accordance with the Debentures and Warrants, as applicable, will be validly issued and outstanding as fully paid and non-assessable; and the Warrants issuable upon exercise of the conversion rights under its Debentures, if and when issued, will be validly issued;
(d) no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required by the Corporation in connection with the execution and delivery or with the performance by the Corporation of this subscription agreement except in compliance with and the rules of the TSX;
(e) to the Subscriber is truebest of the Corporation’s knowledge, accurate information and complete belief, no portion of the Corporation’s Information Record contained a misrepresentation as at its date of public dissemination;
(f) there has been no adverse material change in relation to the Corporation since September 30, 2005, and no adverse material fact exists in relation to the Corporation or its securities which, in either case, has not been generally disclosed or disclosed in the Corporation’s Information Record;
(g) this subscription agreement and all material respectsother agreements required in connection with the issue and sale of the Debentures have been or will be, at or prior to the Closing Time, duly authorized, executed and delivered by the Corporation and will be valid and binding obligations of the Corporation enforceable in accordance with their respective terms (except as the enforceability thereof may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally, (ii) general equitable principles or (iii) limitations under applicable law in respect of rights of indemnity, contribution and waiver of contribution); and
(nh) The the Corporation and its subsidiaries own all intends that the net proceeds of the properties and assets that they purport to own Offering will be used substantially in the Disclosure Record. Except as disclosed manner specified in Schedule “B” hereto.
(i) Forthwith after the Disclosure RecordClosing, all agreements by which the Corporation or its subsidiaries holds an interest in shall file such forms and documents as may be required under the Applicable Securities Laws relating to the Offering and any further documents as may be required by any applicable regulatory authority which, without limiting the generality of the foregoing, shall include a property or asset are in good standing in all material respects according to their termsForm 45-501F1 as prescribed by the Securities Act (Ontario) and a Form 45-103F4 as prescribed by Multilateral Instrument 45-103.
Appears in 1 contract
Samples: Subscription Agreement (Adb Systems International LTD)
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at Investor the date of this Agreement and at the Time of Closing following matters, and acknowledges and confirms that the Subscriber Investor is relying upon such representations and warranties in connection with the offer, sale and issuance purchase of the Subscribed Purchased Shares to contemplated hereby, the Subscriberentering into of this Agreement and the other elements of the Financing:
(a) The the Corporation and its subsidiaries the Subsidiary are corporations incorporated duly incorporated, continued or amalgamated and validly existing and in good standing under the laws of the jurisdictions jurisdiction in which they are it was incorporated, continued or amalgamated, as the case may be, has all requisite corporate power, authority and capacity to own, lease or operate its properties and assets as described in the Public Record and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up, and the Corporation has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder;
(b) The execution and delivery of, and performance by the Corporation is the registered and beneficial holder of this Agreement have been authorized by all necessary corporate action of the issued and outstanding securities of the Subsidiary free and clear of all Encumbrances whatsoever and no person or other entity has any agreement, option, right or privilege (whether pre-emptive or contractual) to purchase or receive (or capable of becoming an agreement or a right to purchase or receive) from the Corporation or the Subsidiary any issued or unissued securities of the Subsidiary;
(c) the Corporation and the Subsidiary are qualified to carry on business as described in the part Public Record under the laws of each jurisdiction in which it carries on its business;
(d) other than the Subsidiary, the Corporation has no investment in any person which is material to the business and affairs of the Corporation;
(ce) This Agreement has been duly executed the Corporation is a “reporting issuer” under Canadian Securities Laws of each of the provinces of British Columbia, Alberta, Manitoba, Ontario and delivered Quebec, is not in default of any requirement of such Canadian Securities Laws, and is not included on a list of defaulting reporting issuers maintained by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it securities commissions in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Sharessuch provinces;
(f) Computershare Trust Company the execution and delivery of Canada at this Agreement and the performance by the Corporation of its offices obligations hereunder, including the allotment, reservation, issuance and delivery of the Purchased Shares, do not and will not conflict with or result in a breach or violation of any of the city terms or provisions of, or constitute a default under (whether after notice or lapse of Vancouvertime or both), is (a) any statute, rule or regulation applicable to the duly appointed registrar Corporation, including Canadian Securities Laws and transfer agent the rules and regulations of the TSXV; (b) the Corporation’s Constating Documents or resolutions of the directors or shareholders of the Corporation with respect and the Subsidiary which are in effect at the date hereof; (c) any mortgage, note, indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which the Common Shares Corporation or the Subsidiary is a party or by which it is bound; or (d) any judgment, decree or order binding the “Transfer Agent”)Corporation or the Subsidiary or the property or assets thereof;
(g) The authorized capital the Corporation is in compliance with its timely and continuous disclosure obligations under applicable Canadian Securities Laws and the rules and regulations of the TSXV and, without limiting the generality of the foregoing, there has not occurred any Material Adverse Change since December 31, 2013 which has not been disclosed on the Public Record, all statements set forth in all documents publicly filed by or on behalf of the Corporation consists of an unlimited number of Common Shares pursuant to applicable Canadian Securities Laws since December 31, 2013, were true, correct, and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares complete as of the Corporation are fully paid date of such statements in all material respects and non-assessable. There are no other equity or voting securities did not contain any misrepresentation as of the Corporation outstanding, date of such statements and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shareshas not filed any confidential material change reports since the date of such statements which remains confidential as at the date hereof;
(h) The Subscribed Shares neither the Corporation nor the Subsidiary is in violation of its Constating Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, trust deed, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it or its property may be bound, except in each case as would not have been duly authorized for issuance a Material Adverse Effect, and sale by all necessary action on the part Constating Documents attached hereto as Appendix “A” are a true and correct copy of the Constating Documents of the Corporation and, when issued and delivered by effective the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Lawsdate hereof;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect counterparty to any of obligation, agreement, covenant or condition contained in any contract, indenture, trust deed, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party is in default in the Corporation’s securitiesperformance or observance thereof except in each case as would not have a Material Adverse Effect;
(j) The except as disclosed in the Public Record, neither the Corporation and its subsidiaries have not committed an act nor the Subsidiary has approved, or entered into any agreement in respect of: (a) the purchase of bankruptcyany material property or assets or any interest therein or the sale, are not insolventtransfer or other disposition of any material property or assets or any interest therein currently owned, have not proposed a compromise directly or arrangement to creditors generallyindirectly, have not had a petition by the Corporation or a receiving order the Subsidiary, whether by asset sale, transfer of shares or otherwise other than in bankruptcy filed against the ordinary course of business; or (b) any change in control of themthe Corporation (by sale, have not made a voluntary assignment in bankruptcytransfer or other disposition of shares or sale, have not taken any proceedings with respect to a compromise transfer, lease or arrangement, have not taken any proceedings to be declared bankrupt other disposition of all or wound-up, have not taken any proceedings to have a receiver appointed for any substantially all of the property and have not had any execution or distress become enforceable or become levied upon any assets of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principlesCorporation);
(k) The Corporation is a reporting issuer the Financial Statements have been prepared in accordance with Canadian GAAP and present fairly in all material respects, the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares consolidated financial condition of the Corporation are currently listed and posted the Subsidiary as at the dates thereof and the consolidated results of the operations and cash flows of the Corporation and the Subsidiary for trading on the Exchange periods then ended and contain and reflect adequate provisions or allowance for all reasonably anticipated liabilities, expenses and losses of the Corporation, as applicable, and there has been no order ceasing material change in accounting policies or suspending tradingpractices of the Corporation since December 31, 2013;
(l) since December 31, 2013, except as disclosed in the Public Record: (a) there has been no change in the condition (financial or otherwise), or in the properties, capital, affairs, prospects, operations, assets or liabilities of the Corporation, whether or not arising in the ordinary course of business, which would have a Material Adverse Effect; and (b) there have been no material transactions entered into by the Corporation, other than as publicly disclosed, those in any securities the ordinary course of business;
(m) all Taxes due and payable by the Corporation and the Subsidiary have been paid. All tax returns, declarations, remittances and filings required to be filed by the Corporation and the Subsidiary have been filed with all appropriate Governmental Authorities and all such returns, declarations, remittances and filings are complete and accurate and no material fact or prohibiting the sale or issuance of the Subscribed Shares or the trading of facts have been omitted therefrom which would make any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to them misleading. To the knowledge of the Corporation, are pending; and (ii) the Corporation has not taken no examination of any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition tax return of the Corporation provided or the Subsidiary is currently in progress and there are no issues or disputes outstanding with any Governmental Authority respecting any Taxes that have been paid, or may be payable, by the Corporation or any of its advisers to the Subscriber is true, accurate and complete in all material respects; andSubsidiary;
(n) The based upon representations made by the Corporation’s auditors to the Corporation, the Corporation’s auditors, who audited the audited Financial Statements and who provided their audit report thereon, are independent public accountants as required under Canadian Securities Laws. There has never been a “reportable event” (within the meaning of National Instrument 51-102 - Continuous Disclosure Obligations) between the Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which Corporation’s auditors; (o) the Corporation maintains a system of internal accounting controls sufficient to provide reasonable assurances that (a) transactions are executed in accordance with management’s general or its subsidiaries holds an interest specific authorization, and (b) transactions are recorded as necessary to permit preparation of financial statements in a property or asset are in good standing in all material respects according conformity with Canadian GAAP and to their terms.maintain accountability for assets;
Appears in 1 contract
Representations and Warranties of the Corporation. The Corporation represents represents, warrants and warrants covenants that, as follows to the Subscriber at of the date of this Agreement given above and at the Time of Closing and acknowledges and confirms that the Subscriber is relying upon such representations and warranties in connection with the offer, sale and issuance of the Subscribed Shares to the SubscriberClosing:
(a) The the Corporation is a valid and its subsidiaries are corporations incorporated subsisting corporation amalgamated and existing in good standing under the laws of the Province of British Columbia;
(b) the Corporation is duly registered and licensed to carry on business in each jurisdiction in which it carries on business or owns property where required under the laws of that jurisdiction;
(c) as at the date of this Agreement the authorized capital of the Corporation consists of unlimited Common Shares, of which 29,671,832 Common Shares are issued and outstanding as fully paid and non-assessable as at January 22, 2019;
(d) all financial statements, information circulars, news releases, material change reports and other documents filed by the Corporation with the Commissions in Canada on the System for Electronic Document Analysis and Retrieval or with the United States Securities and Exchange Commission (the “Disclosure Record”) within the past 12 months were true and correct in all material respects and did not contain any misrepresentation (as defined in the Securities Act (British Columbia)) as at the respective dates of such filings;
(e) except as qualified by the disclosure in the Disclosure Record, the Corporation is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record;
(f) except as qualified by the disclosure in the Disclosure Record, any and all agreements pursuant to which the Corporation holds its material assets or is entitled to the use of material assets are valid and subsisting agreements in full force and effect, enforceable in accordance with their respective terms and the Corporation is not in material default of any of the provisions of any such agreements nor has any such default been alleged, and the Corporation is not aware of any disputes with respect thereto and such assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are incorporatedsituate, continued or amalgamatedand all leases, licences, concessions, and claims pursuant to which the Corporation derives its interests in such material assets are in good standing and there has been no material default under any such leases, licenses, concessions, and claims and all taxes required to be paid with respect to such assets to the date hereof have been paid;
(bg) The execution except as qualified by the disclosure in the Disclosure Record, the Corporation has conducted and delivery is conducting its business in compliance in all material respects with all applicable laws, rules, regulations, tariffs, orders and directives of each jurisdiction in which it carries on business (except when the failure to do so would not have a material adverse effect) and possesses all material certificates, authorities, permits or licences issued by the appropriate provincial, state, municipal, federal or other governmental or regulatory agency or body necessary to carry on the business currently as carried on, or contemplated to be carried on, by it, is in compliance in all material respects with such certificates, authorities, permits and licences and with all laws, regulations, tariffs, rules, orders and directives material to its operations, including, without limitation, all laws, regulations and statutes relating to mining claims, concessions, licenses, leases or other instruments and the Corporation has not received any notice of proceedings relating to the revocation or modification of any such certificates, authorities, permits, licences, mining claims, concessions, leases or other instruments conferring mineral rights which, singly or in the aggregate, if the subject of an unfavourable decision, order, ruling or finding, would materially and adversely affect the conduct of its business, operations, financial condition or income of the Corporation and it has not received notice of the revocation or cancellation of, or any intention to revoke or cancel, any such licence, permit, approval, consent, certificate, registration or authorization;
(h) the financial statements of the Corporation contained in the Disclosure Record, filed with any of the Commissions have all been prepared in accordance with Canadian generally accepted accounting principles, accurately reflect the financial position and performance all material liabilities (accrued, absolute, contingent or otherwise) of the Corporation as of the date thereof;
(i) the Corporation has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Securities Laws and the Business Corporations Act (British Columbia) in relation to the issue and trading of its securities and in all matters relating to the private placement of the Offered Securities;
(j) there is not presently any material change, as defined in the Securities Laws, relating to the Corporation or change in any material fact, as defined in the Securities Laws, relating to any of the Purchased Securities, which has not been fully disclosed in accordance with the requirements of the Securities Laws and the policies of the Stock Exchanges;
(k) the issue and sale of the Offered Securities by the Corporation does not and will not conflict with, and does not and will not result in a breach of, any of the terms of the Corporation’s constating documents or any agreement or instrument to which the Corporation is a party or by which it is bound;
(l) except as described in the Disclosure Record, the Corporation is not a party to any actions, suits or proceedings which could materially affect its business or financial condition, and to the best of the Corporation’s knowledge, no such actions, suits or proceedings are contemplated or have been threatened;
(m) there are no judgments against the Corporation which are unsatisfied, nor is the Corporation subject to any consent decrees or injunctions;
(n) this Agreement have has been or will be at the Closing Date duly authorized by all necessary corporate action on the part of the Corporation, and the Corporation has full corporate power and authority to undertake the Offering;
(co) This Agreement has been duly executed and delivered by to the Corporation and constitutes a legalCorporation’s knowledge, valid and binding agreement it is not in default in any material respect of any of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation requirements of the Offering, other than the Exchange’s acceptance Securities Laws or any of the transactions contemplated hereinadministrative policies, and the filings required to be made prior to notices or following Closingrules, under the rules as applicable, of the Toronto Stock Exchange;
(ep) The Corporation has complied with Applicable Securities Laws no order ceasing or suspending trading in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstandingnor prohibiting the sale of such securities has been issued to and is outstanding against the Corporation or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened;
(q) the Corporation has filed all federal, provincial, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; and
(r) the Corporation has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or its subsidiaries except for taxes not yet due, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading audits of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) the Corporation has not taken any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition tax returns of the Corporation provided which are known by the Corporation or any of its advisers Corporation’s management to the Subscriber is truebe pending, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by other than such audits which the Corporation or its subsidiaries holds an interest in a property or asset are currently being contested in good standing in all material respects according to their termsfaith.
Appears in 1 contract
Representations and Warranties of the Corporation. The Corporation represents represents, warrants and warrants covenants that, as follows to the Subscriber at of the date of this Agreement given above and at the Time of Closing and acknowledges and confirms that the Subscriber is relying upon such representations and warranties in connection with the offer, sale and issuance of the Subscribed Shares to the SubscriberClosing:
(a) The the Corporation is a valid and its subsidiaries are corporations incorporated subsisting corporation amalgamated and existing in good standing under the laws of the Province of British Columbia;
(b) the Corporation is duly registered and licensed to carry on business in each jurisdiction in which it carries on business or owns property where required under the laws of that jurisdiction;
(c) as at the date of this Agreement the authorized capital of the Corporation consists of unlimited Common Shares, of which 33,821,961 Common Shares are issued and outstanding as fully paid and non-assessable as at June 24, 2019;
(d) all financial statements, information circulars, news releases, material change reports and other documents filed by the Corporation with the Commissions in Canada on the System for Electronic Document Analysis and Retrieval or with the United States Securities and Exchange Commission (the “Disclosure Record”) within the past 12 months were true and correct in all material respects and did not contain any misrepresentation (as defined in the Securities Act (British Columbia)) as at the respective dates of such filings;
(e) except as qualified by the disclosure in the Disclosure Record, the Corporation is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record;
(f) except as qualified by the disclosure in the Disclosure Record, any and all agreements pursuant to which the Corporation holds its material assets or is entitled to the use of material assets are valid and subsisting agreements in full force and effect, enforceable in accordance with their respective terms and the Corporation is not in material default of any of the provisions of any such agreements nor has any such default been alleged, and the Corporation is not aware of any disputes with respect thereto and such assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are incorporatedsituate, continued or amalgamatedand all leases, licences, concessions, and claims pursuant to which the Corporation derives its interests in such material assets are in good standing and there has been no material default under any such leases, licenses, concessions, and claims and all taxes required to be paid with respect to such assets to the date hereof have been paid;
(bg) The execution except as qualified by the disclosure in the Disclosure Record, the Corporation has conducted and delivery is conducting its business in compliance in all material respects with all applicable laws, rules, regulations, tariffs, orders and directives of each jurisdiction in which it carries on business (except when the failure to do so would not have a material adverse effect) and possesses all material certificates, authorities, permits or licences issued by the appropriate provincial, state, municipal, federal or other governmental or regulatory agency or body necessary to carry on the business currently as carried on, or contemplated to be carried on, by it, is in compliance in all material respects with such certificates, authorities, permits and licences and with all laws, regulations, tariffs, rules, orders and directives material to its operations, including, without limitation, all laws, regulations and statutes relating to mining claims, concessions, licenses, leases or other instruments and the Corporation has not received any notice of proceedings relating to the revocation or modification of any such certificates, authorities, permits, licences, mining claims, concessions, leases or other instruments conferring mineral rights which, singly or in the aggregate, if the subject of an unfavourable decision, order, ruling or finding, would materially and adversely affect the conduct of its business, operations, financial condition or income of the Corporation and it has not received notice of the revocation or cancellation of, or any intention to revoke or cancel, any such licence, permit, approval, consent, certificate, registration or authorization;
(h) the financial statements of the Corporation contained in the Disclosure Record, filed with any of the Commissions have all been prepared in accordance with Canadian generally accepted accounting principles, accurately reflect the financial position and performance all material liabilities (accrued, absolute, contingent or otherwise) of the Corporation as of the date thereof;
(i) the Corporation has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Securities Laws and the Business Corporations Act (British Columbia) in relation to the issue and trading of its securities and in all matters relating to the private placement of the Offered Securities;
(j) there is not presently any material change, as defined in the Securities Laws, relating to the Corporation or change in any material fact, as defined in the Securities Laws, relating to any of the Purchased Securities, which has not been fully disclosed in accordance with the requirements of the Securities Laws and the policies of the Stock Exchanges;
(k) the issue and sale of the Offered Securities by the Corporation does not and will not conflict with, and does not and will not result in a breach of, any of the terms of the Corporation’s constating documents or any agreement or instrument to which the Corporation is a party or by which it is bound;
(l) except as described in the Disclosure Record, the Corporation is not a party to any actions, suits or proceedings which could materially affect its business or financial condition, and to the best of the Corporation’s knowledge, no such actions, suits or proceedings are contemplated or have been threatened;
(m) there are no judgments against the Corporation which are unsatisfied, nor is the Corporation subject to any consent decrees or injunctions;
(n) this Agreement have has been or will be at the Closing Date duly authorized by all necessary corporate action on the part of the Corporation, and the Corporation has full corporate power and authority to undertake the Offering;
(co) This Agreement has been duly executed and delivered by to the Corporation and constitutes a legalCorporation’s knowledge, valid and binding agreement it is not in default in any material respect of any of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation requirements of the Offering, other than the Exchange’s acceptance Securities Laws or any of the transactions contemplated hereinadministrative policies, and the filings required to be made prior to notices or following Closingrules, under the rules as applicable, of the Toronto Stock Exchange;
(ep) The Corporation has complied with Applicable Securities Laws no order ceasing or suspending trading in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstandingnor prohibiting the sale of such securities has been issued to and is outstanding against the Corporation or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened;
(q) the Corporation has filed all federal, provincial, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; and
(r) the Corporation has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or its subsidiaries except for taxes not yet due, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation of any Applicable Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading audits of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (ii) the Corporation has not taken any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition tax returns of the Corporation provided which are known by the Corporation or any of its advisers Corporation’s management to the Subscriber is truebe pending, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by other than such audits which the Corporation or its subsidiaries holds an interest in a property or asset are currently being contested in good standing in all material respects according to their termsfaith.
Appears in 1 contract
Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with each Purchaser that as follows to of the Subscriber at date hereof and as of the Closing Date:
(a) The authorized capital stock of the Corporation consists of 100,000,000 shares of Common Stock of which 51,865,044 shares of Common Stock are outstanding as of the date of this Agreement.
(b) Since December 31, 2008, the Corporation has filed all material reports, registrations and statements, together with any required amendments thereto, that it was required to file with the Securities and Exchange Commission (the "SEC") and any other applicable federal or state securities authorities. All such reports and statements filed with any such regulatory body or authority are collectively referred to herein as the "Corporation Reports." As of their respective dates, the Corporation Reports complied as to form in all material respects with all the rules and regulations promulgated by the SEC and any other applicable foreign, federal or state securities authorities, as the case may be.
(c) Except as previously disclosed in writing to the Purchasers, since December 31, 2008, no change has occurred and no circumstances exist (including any changes, occurrences, circumstances or facts existing prior to December 31, 2008 but which become known on or after December 31, 2008) that is not disclosed in the Disclosure Materials (as defined below) which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect.
(d) The Corporation has all permits, licenses, authorizations, orders and approvals of, and has made all filings, applications and registrations with, any governmental entities that are required in order to carry on its business as presently conducted and that are material to the business of the Corporation, except where the failure to have such permits, licenses, authorizations, orders and approvals or the failure to make such filings, applications and registrations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and all such permits, licenses, certificates of authority, orders and approvals are in full force and effect and, to the knowledge of the Corporation, no suspension or cancellation of any of them is threatened, and all such filings, applications and registrations are current.
(e) Each of the following publicly filed documents is available via the EXXXX system to the Purchaser: (i) the Corporation's Annual Report on Form 10-K for the year ended June 30, 2009; (ii) the Corporation's Quarterly Reports on Form 10-Q for each of the quarters ended March 31, 2009, December 31, 2008 and September 30, 2008; (iii) the Corporation's proxy statement for its Annual Meeting of Stockholders held on February 12, 2009; and (iv) the Corporation's Current Reports on Form 8-K filed with the SEC since December 31, 2008, pursuant to the reporting requirements of the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act") (items (i) through (iv) collectively, the "Disclosure Materials"), which Disclosure Materials include, among other things, the Agreement and at Plan of Merger by and between Patriot Capital Funding, Inc. and the Time Corporation, dated as of Closing August 3, 2009, audited consolidated balance sheets of the Corporation as of June 30, 2009 and acknowledges 2008 and confirms that the Subscriber is relying related consolidated statements of operations, changes in net assets and cash flow for each of the three years in the period ended June 30, 2009. As of the date hereof, each of the documents comprising a part of the Disclosure Materials, when such documents are considered together as a whole, did not contain or will not contain any untrue statement of material fact or omitted to state or will not omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) Based in part upon such the representations and warranties of each Purchaser contained herein, the Corporation is not required by applicable law or regulation in connection with the offer, sale and issuance delivery of the Subscribed Shares to the Subscriber:Purchasers in the manner contemplated by this Agreement to register the Shares under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities laws.
(ag) The Corporation and its subsidiaries are corporations Corporation, (i) has been duly incorporated and is validly existing in good standing under the laws of the jurisdictions its jurisdiction of incorporation, (ii) is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which they are incorporatedits ownership or lease of property or the conduct of its businesses requires such qualification, continued except where the failure to be so qualified would not result in any material adverse change in the condition, financial or amalgamated;
(b) The execution otherwise, or in the earnings or business affairs of the Corporation, or which would not materially and delivery ofadversely affect the assets or properties of the Corporation, or which would not materially and performance by adversely affect the ability of the Corporation to perform its obligations under the Transaction Documents (individually or in the aggregate, a "Material Adverse Effect," except that the mere filing of any action, claim, suit or order relating to any actual or threatened litigation involving the Corporation or any of its employees after the date of this Agreement have been authorized by (rather than the actual facts and circumstances underlying such action, claim, suit or order) shall not be deemed a Material Adverse Effect); and (iii) has all corporate power and authority necessary corporate action on to own or hold its respective properties and to conduct the part businesses in which it is currently engaged.
(h) All of the Corporation;
(c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement issued shares of capital stock of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice tohave been duly and validly authorized and issued, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are assessable and no other equity or voting securities such shares were issued in violation of the Corporation outstandingpreemptive or similar rights of any security holder of the Corporation. Except as disclosed in the Disclosure Materials, and no person has any preemptive or similar statutory or contractual right to purchase any shares of capital stock of the Corporation. Except as disclosed in the Disclosure Materials, there are no outstanding stock optionswarrants, warrants options or other convertible securities rights to subscribe for or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to purchase any of the Credit Agreement. The fully diluted share Corporation's capital stock and no restrictions upon the voting or transfer of any capital stock of the Corporation pursuant to the Corporation's charter or bylaws or any agreement or other instrument to which the Corporation is 51,291,665 Common Shares;a party or by which the Corporation is bound.
(hi) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of therefor in the consideration thereof pursuant to manner contemplated by this Agreement, will have been be validly issued, and will be outstanding as fully paid and non-assessable sharesassessable, free from all taxes, liens and charges with respect to the issue thereof, and the issuance of the Shares will not obligate the Corporation to issue shares of capital stock to any person.
(j) This Agreement and the Registration Rights Agreement have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued duly authorized, executed and delivered by the Corporation and constitute a valid and legally binding agreement of the Corporation enforceable against the Corporation in accordance with their terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and general equitable principles (whether considered in violation a proceeding in equity or at law).
(k) The execution, delivery and performance of any Applicable Securities Laws;
this Agreement and the Registration Rights Agreement, the issuance and sale of the Shares in the manner contemplated hereby, and the consummation of the Transactions, will not (i) The conflict with or constitute a violation of, or default (with the passage of time or the delivery of notice) under, (A) any bond, debenture, note or other evidence of indebtedness, or any agreement, lease, franchise, license, permit, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which the Corporation is not a party or subject by which it or its property is bound, where such conflict, violation or default would reasonably be expected to any agreement have a Material Adverse Effect, or understanding and, (B) to the knowledge of the Corporation, there any law, administrative regulation, ordinance or judgment, order or decree of any court or governmental agency, arbitration panel or authority binding upon the Corporation or any of its property, where such conflict, violation or default would reasonably be expected to have a Material Adverse Effect, or (ii) violate any of the provisions of the Articles of Amendment and Restatement, or Amended and Restated Bylaws, of the Corporation; and no consent, approval, authorization or order of, or filing or registration with any such person (including, without limitation, any such court or governmental agency or body) is no agreement between any shareholders required for the consummation of the Transactions by the Corporation, except such as may be required under state securities laws or officers Regulation D under the Securities Act, or directors required by The NASDAQ Stock Market ("NASDAQ").
(l) The audited consolidated financial statements (including the related notes) included or incorporated in the Disclosure Materials present fairly, in all material respects, the financial condition and results of operations of the Corporation, that affects or relates to at the voting or giving of written consents with respect to any of dates and for the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcyperiods indicated, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian been prepared in conformity with U.S. generally accepted accounting principles;principles applied on a consistent basis throughout the periods involved.
(km) The Corporation is a reporting issuer Except as disclosed in the Provinces of OntarioDisclosure Materials or as previously disclosed to the Purchasers, British Columbia and Albertathere is no action, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing suit or suspending trading, other than as publicly disclosed, in proceeding before or by any securities of the Corporation court or prohibiting the sale governmental agency or issuance of the Subscribed Shares body or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened labor dispute now pending or, to the knowledge of the Corporation, are pending; and (ii) threatened against the Corporation has not taken any action Corporation, which would reasonably be expected to result have a Material Adverse Effect.
(n) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Transactions is in effect nor has any action been filed or is any proceeding pending that seeks any such event.
(o) Except for payments made or to be made to the Corporation's placement agent, no broker's, finder's, investment banker's or similar fee or commission has been paid or will be payable by the Corporation with respect to, or for any services rendered to the Corporation ancillary to, the offer, issue and sale of the Shares contemplated by this Agreement. Any such fee or commission shall be payable by the Corporation and not any of the Purchasers.
(p) Except as set forth in the delisting Disclosure Materials, the Corporation does not own or suspension of the Common Shares on control, directly or from the Exchange;indirectly, any "Significant Subsidiary" as defined in SEC Regulation S-X.
(lq) The Corporation is licensedhas filed on a timely basis all material federal, registered state, local and foreign income and franchise tax returns required to be filed by it through the date hereof or qualified had properly requested extension thereof and has paid all material taxes shown as an extra-provincial due thereon, and any related material assessments, fines or foreign corporation in all jurisdictions penalties, except where the character failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Corporation has made reasonably adequate charges, accruals and reserves in the applicable financial statements referred to in this Section 4.1(q) in respect of all federal, state, local and foreign income and franchise taxes for all periods as to which the tax liability of the property Corporation has not been finally determined. The Corporation has no knowledge of a material tax deficiency which has been or assets thereof owned is reasonably likely to be asserted or leased or threatened against it.
(r) To its knowledge, the nature of the activities conducted by it make licensing, registration or qualification necessary and Corporation is carrying on the business thereof in material compliance with all applicable laws, rules, regulations, orders, decrees and judgments applicable to it, including, without limitation, the Investment Company Act of 1940, as amended, and the rules promulgated thereunder, all applicable local, state and federal environmental laws and regulations and the provisions of the Sxxxxxxx-Xxxxx Act of 2002, as amended ("Sxxxxxxx-Xxxxx Act") and the applicable federal and state banking laws, rules and regulations regulations, together with the Sxxxxxxx-Xxxxx Act, the "Applicable Laws"), except where failure to be so in compliance would not have a Material Adverse Effect. The Corporation has not received any notice of each such jurisdiction;purported or actual non-compliance with Applicable Laws, except to the extent it would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Corporation has not received any communication from any Governmental Authority threatening to revoke any permit, license, franchise, certificate of authority or other governmental authorization.
(ms) To its knowledge, the Corporation's Common Stock is in compliance with all the requirements of NASDAQ for continued listing of the Common Stock thereon. Furthermore, the Corporation has taken no action designed to, or reasonably likely to have the effect of, terminate the registration of the Common Stock under the Exchange Act or de-listing the Common Stock from NASDAQ, nor has the Corporation received any notification that the SEC or NASDAQ is contemplating terminating such registration or listing.
(t) The information Corporation maintains insurance (issued by insurers of recognized financial responsibility) of the types, against such losses and in the amounts, with such insurers and subject to deductibles and exclusions as are customary in the Corporation's industry and otherwise reasonably prudent, including, without limitation, insurance covering all documents filed real and personal property owned or leased by the Corporation with Canadian securities regulatory authorities against theft, damage, destruction, acts of vandalism and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect.
(u) The Corporation has satisfied the conditions for use of Form N-2 as set forth in the General Instructions to such Form.
(v) The Corporation has not taken, directly or indirectly, any action designed to or that would constitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Corporation to facilitate the sale or resale of the Shares.
(w) None of the Corporation, any of its affiliates, and any Person acting on its behalf, including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) wasCorporation's placement agent has, at directly or indirectly, made any offers or sales of the time Shares or solicited any offers to buy the Shares, under circumstances that would require registration of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in the Shares under the Securities Act. For the purposes of this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business"Person" shall mean any individual, assetscorporation, liabilitiespartnership, propertiesjoint venture, capitalization limited liability company, business trust, joint stock corporation, trust or financial condition of the Corporation provided by the Corporation unincorporated organization or any of its advisers to the Subscriber is true, accurate and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in the Disclosure Record, all agreements by which the Corporation government or its subsidiaries holds an interest in a property agency or asset are in good standing in all material respects according to their termspolitical subdivision thereof.
Appears in 1 contract
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at the date of this Agreement and at the Time of Closing Underwriter that, and acknowledges and confirms that the Subscriber Underwriter is relying upon upon, such representations and warranties in connection with purchasing the offer, sale and issuance of the Subscribed Shares to the SubscriberUnderwritten Shares:
(a) The the Corporation is a company duly continued, organized and its subsidiaries are corporations incorporated and validly existing in good standing under the laws of Alberta and is properly registered under the laws of all jurisdictions in which they are incorporated, continued or amalgamated;
(b) The execution and delivery of, and performance by its business is carried on except where the Corporation of this Agreement failure to be so registered would not have been authorized by all necessary corporate action a material adverse effect on the part business of the Corporation;
(cb) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(hi) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part a reporting issuer not in default in any material respect of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issuedany requirement under Canadian Securities Laws, and will be outstanding as fully paid and non-assessable shares, and will (ii) not have been issued in violation of or subject to default in any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation material respect of any Applicable requirement under U.S. Securities Laws;
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (iic) the Corporation has not taken any action which would reasonably be expected the requisite corporate power, authority and capacity to result in enter into this Agreement and to perform the delisting transactions contemplated herein and the Corporation has the requisite corporate power, authority and capacity to own its property and assets including licences or suspension of other similar rights and to carry on the Common Shares affairs customarily carried on by it and has all the requisite corporate power and authority to carry on its affairs as currently carried on or from the Exchange;
(l) as currently proposed to be carried on. The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation conducting its affairs in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each jurisdiction in which its affairs are carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns its property or carries on affairs to enable its affairs to be carried on as now conducted and its property and assets to be owned, except where such jurisdictionnon-compliance or failure to obtain such licence, registration or qualification would not have a material adverse effect on the affairs of the Corporation and all such licences, registrations and qualifications are valid and subsisting and in good standing;
(d) the Corporation has authorized share capital consisting of an unlimited number of Class A Shares and 50,000 Common Shares of which 40,000 Common Shares and 129,452,713 Class A Shares and no more are validly issued and outstanding as fully paid and non-assessable. No person, firm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Corporation of any unissued shares of the Corporation except as otherwise referred to in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(e) except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements, to the best of the Corporation’s knowledge, there is no action, proceeding or investigation pending or threatened against the Corporation before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which is reasonably expected to result in any material change in the affairs or in the condition (financial or otherwise) of the Corporation or its properties or assets (taken as a whole), or which questions the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or as contemplated by the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(f) since April 30, 2008, there have been no changes in the assets or liabilities of the Corporation from the position thereof as set forth therein, except changes arising from transactions in the ordinary course of its affairs which, in the aggregate, have not been material to the Corporation and except for changes that are disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements;
(g) the financial statements of the Corporation, including the notes thereto, incorporated in Disclosure Package, the Prospectus Supplements and the Registration Statement have been prepared in conformity with Canadian generally accepted accounting principles and in a manner that is consistent with U.S. generally accepted accounting principles and in accordance with the 1933 Act and the Rules, including the requirements of Form F-10, in each case applied on a consistent basis throughout the periods involved;
(h) the financial statements of the Corporation as incorporated by reference in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements present fairly in all material respects the financial position of the Corporation as at the dates of such statements;
(i) the Corporation is not in material violation of, and the execution and delivery of this Agreement and the performance by the Corporation of its obligations under this Agreement will not result in any material breach or, violation of, or be in material conflict with, or constitute a material default under, or create a state of facts which after notice or lapse of time, or both, would constitute a material default under any term or provision of the charter documents or by-laws of the Corporation or any resolution of the directors or shareholders of the Corporation or any material contract, mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, licence or regulation applicable to the Corporation;
(j) no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required of the Corporation in connection with the execution and delivery or with the performance by the Corporation of this Agreement except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements and compliance with the Applicable Securities Laws with regard to the distribution of the Underwritten Shares in the Qualifying Canadian Jurisdictions and the United States;
(k) this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and binding obligation of the Corporation, enforceable in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law and enforceability of paragraph 12 would be determined only in the discretion of a court;
(l) to the knowledge of the Corporation, no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the use or effectiveness of the Shelf Prospectuses, the Disclosure Package, the Prospectus Supplements, the Registration Statement or any Prospectus Amendment or preventing the distribution of the Underwritten Shares in any Qualifying Canadian Jurisdiction or the United States nor instituted proceedings for that purpose and, to the knowledge of the Corporation, no such proceedings are pending or contemplated;
(m) The information the Corporation is eligible in accordance with the provisions of National Instrument 44-101 to file a short form prospectus under National Instrument 44-102 with Canadian Securities Regulators;
(n) the Corporation is not, and upon consummation of the transactions contemplated hereby will not be, an “investment company” or an entity “controlled by an investment company” as such terms are defined in the United States Investment Company Act of 1940, as amended;
(o) CIBC Mellon Trust Company, at its principal office in the Cities of Calgary, Montreal, Toronto and Vancouver has been duly appointed as registrar and transfer agent for the Class A Shares in Canada, and BNY Mellon Shareowner Services, at its principal office in New York, has been duly appointed as registrar and transfer agent for the Class A Shares in the United States;
(p) to the knowledge of the Corporation, the Corporation is not a “related issuer” or “connected issuer” (as such terms are defined under the Canadian Securities Laws) of the Underwriter;
(q) the Corporation has prepared and filed with the SEC an appointment of agent for service of process upon the Corporation on Form F-X;
(r) the Corporation meets the general eligibility requirements for use of Form F-10 under the 1933 Act;
(s) as at their respective dates, the Canadian Shelf Prospectus does, and the Canadian Prospectus Supplement will, comply in all documents filed by material respects with the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) wasSecurities Laws and, at the time of such filingdelivery of the Underwritten Shares to the Underwriter, accurate the Canadian Prospectus Supplement will comply in all material respectsrespects with the Canadian Securities Laws;
(t) (i) the U.S. Shelf Prospectus conforms and the U.S. Prospectus Supplement will conform to the Canadian Shelf Prospectus and Canadian Prospectus Supplement, respectively, except for such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC under the 1933 Act (the “Rules”); (ii) the Registration Statement as amended or supplemented, on the Effective Date and on the date hereof did not contain any misrepresentation untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the U.S. Shelf Prospectus, the Corporation’s Form F-X and did the Registration Statement comply, and the U.S. Prospectus Supplement will comply, in all material respects with the 1933 Act and the Rules; (iv) the Disclosure Package does not, and at the Applicable Time, the time of each sale of the Class A Shares in connection with the offering when the U.S. Prospectus Supplement is not yet available to prospective purchasers and at the Closing Date will not, and the U.S. Shelf Prospectus as supplemented by the U.S. Prospectus Supplement as of its date and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Canadian Shelf Prospectus contains, and the Canadian Prospectus Supplement will contain, full, true and plain disclosure of all material facts required to be stated therein relating to the Corporation, the affairs of the Corporation, and the Underwritten Shares, and as of the date of its filing will contain no untrue statement of a material fact and will not omit to disclose state a material fact regarding the Corporation and its affairs that is necessary to make any material factstatement therein not misleading in light of the circumstances in which it was made; provided, except as subsequently corrected however, that this representation and warranty shall not apply to statements or updated omissions made in a subsequently filed document (reliance upon and in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All conformity with information relating to the businessUnderwriter furnished in writing to the Corporation by the Underwriter expressly for use in the Shelf Prospectuses, assetsthe Disclosure Package, liabilities, properties, capitalization the Prospectus Supplements or financial condition the Registration Statement;
(u) there are no reports or information that in accordance with the requirements of the Corporation provided Canadian Securities Regulators or the SEC must be made publicly available or filed in connection with the offering of the Underwritten Shares that have not been made publicly available or filed as required;
(v) the delivery by the Corporation of any signed Prospectus Amendment or material change report required to be filed under the Applicable Securities Laws will constitute a representation and warranty by the Corporation to the Underwriter that all the information and statements contained therein (except information and statements relating to the Underwriter) are true and correct and that no material information has been omitted therefrom which is necessary to make the statements contained therein not misleading;
(w) the Corporation is in material compliance with each material license held by it and is not in violation of, or in default in any material respect under, the applicable statutes, ordinances, rules, regulations, orders or decrees (including, without limitation, “Environmental Laws” as defined below) of any governmental entities, regulatory agencies or bodies asserting or claiming jurisdiction over it or over any part of its advisers affairs or assets, except for such violations and defaults which, singly or in the aggregate, would not have a material adverse effect on the assets or properties, affairs, prospects or condition (financial or otherwise) of the Corporation;
(x) to the Subscriber best of the knowledge of the Corporation, there are no foreign, federal, provincial, state or local laws or regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) which affect or otherwise have any application to the Corporation or its affairs, properties and assets (taken as a whole), or to which the Corporation is true, accurate otherwise subject. The Corporation does not require any license or other approval under any Environmental Laws to conduct its business;
(y) there has not been any reportable event (within National Instrument No. 51-102) with the auditors of the Corporation;
(z) the Company shall use its best efforts to arrange for the listing and complete in all material respectsposting for trading of the Underwritten Shares on the Stock Exchanges on or before the Time of Closing; and
(naa) The the Corporation and its subsidiaries own all is using the net proceeds of the properties and assets that they purport to own offering of the Underwritten Shares for the purposes described in the Disclosure Record. Except as disclosed in Shelf Prospectuses and the Disclosure Record, all agreements by which the Corporation or its subsidiaries holds an interest in a property or asset are in good standing in all material respects according to their termsPackage.
Appears in 1 contract
Samples: Underwriting Agreement (Central Fund of Canada LTD)
Representations and Warranties of the Corporation. 8.1 The Corporation represents and warrants as follows to the Subscriber at Agent and each of the date of this Agreement and at the Time of Closing Purchasers, and acknowledges and confirms that each of the Subscriber Purchasers is relying upon such representations and warranties in connection with the offerwarranties, sale and issuance of the Subscribed Shares to the Subscriberthat:
(a) The each of the Corporation and its subsidiaries are corporations Subsidiary is a corporation duly incorporated and organized and validly existing in good standing under the laws of the jurisdictions its jurisdiction of incorporation, is duly qualified to carry on its business and is in good standing in each jurisdiction in which they are incorporatedthe conduct of its business or the ownership, continued leasing or amalgamatedoperation of its property and assets requires such qualification, and has all requisite corporate power and authority to carry on its business, to own, lease and operate its property and assets and to execute, deliver and perform its obligations under this Agreement;
(b) The execution and delivery ofthe Corporation, and performance by the Corporation of this Agreement have been authorized by either directly or indirectly, beneficially owns all necessary corporate action on the part of the Corporation;
(c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms;
(d) The Corporation is not required to give any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and the filings required to be made prior to or following Closing, under the rules of the Exchange;
(e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares shares of the Corporation are fully paid Subsidiary free and nonclear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever (except for security granted to Thomas Koll or the Toronto-assessable. There are no other equity or voting securities of the Corporation outstandingDominion Bank), and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares all xx xxxx xhares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when validly issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, of any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of the Subsidiary or any other security convertible into or exchangeable for any such shares;
(c) each of the Corporation and the Subsidiary, holds all material licences, certificates, registrations, permits, consents or qualifications required by the appropriate state, provincial, municipal or federal regulatory agencies or bodies necessary in order to enable its business to be carried on as now conducted and will all such licences, certificates, registrations, permits, consents and qualifications are valid and subsisting and in good standing and do not have been issued contain any unusual burdensome provision, condition or limitation which has a material adverse effect on the operation of the business of the Corporation or the Subsidiary, taken as a whole, as now conducted or as presently proposed to be conducted and the Corporation has not received any notice of proceedings relating to the revocation or modification of any such licenses, certificates, registrations, permits, consents, or qualifications which, if the subject of an unfavourable decision, ruling or finding would adversely affect the conduct of the business, operations, financial condition or income or future prospects of the Corporation and the Subsidiary (taken as a whole);
(d) no reorganization, amalgamation, merger, acquisition or disposition of assets not in violation the ordinary course of or subject to any pre-emptive rights or other contractual rights to purchase securities issued business by the Corporation or other change in violation the business, operations or capital of the Corporation (other than the transactions contemplated herein) is pending which could reasonably be expected to have a material adverse effect on the market price or value of the Common Shares;
(e) the Corporation has full corporate power and authority to undertake the Offering, the Prospectus Qualification and all other transactions contemplated herein;
(f) the Transaction Documents have been or shall be duly authorized and have been, or shall be, executed and delivered by the Corporation, as applicable, and constitute, or shall constitute upon execution and delivery, legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their terms subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally, the qualification that equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights to indemnity and waiver of contribution may be limited by applicable law;
(g) the authorized capital of the Corporation consists of 200,000,000 Common Shares of which 23,411,003 Common Shares are validly issued and outstanding as fully paid and non-assessable as at November 23, 2001, and no person or other entity has any Applicable agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for or the right to purchase any of the issued or unissued securities of the Corporation except as disclosed in Schedule A;
(h) the Corporation is not in default under or in breach of, and the execution, delivery, performance of and compliance by the Corporation with the terms of the Transaction Documents and, the issuance, sale and delivery of the Subject Securities Lawsand the Underlying Securities shall not result in a breach of, and shall not create a state of facts which, after notice or lapse of time or both, shall result in a breach of, and shall not conflict with (i) any of the terms, conditions or provisions of the constating documents or by-laws of the Corporation (or its Subsidiary), (ii) any material indenture, agreement (written or oral), contract lease or other instrument to which the Corporation (or its Subsidiary) is a party or by which the Corporation (or its Subsidiary) is or shall be contractually bound as of the Closing Time, (iii) any law, statute, rule or regulation applicable to the Corporation (or its Subsidiary), and (iv) any judgment, decree or order binding the Corporation (or its Subsidiary) or the property or assets of the Corporation (or its Subsidiary);
(i) The Corporation is not party no legal or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with governmental proceedings (including in respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informalclass action) proceedings for such purpose have been threatened are pending or, to the knowledge of the Corporation, are pending; and (ii) threatened to which the Corporation has not and/or its Subsidiary is a party or to which the property of the Corporation and/or its Subsidiary is subject that would result individually or in the aggregate in any adverse material change in the operations, business or condition of the Corporation and its Subsidiary, taken as a whole;
(j) except as described in Schedule B, there are no actions, suits or proceedings pending or affecting or, to the knowledge of the Corporation, threatened against the Corporation in any action court or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, the outcome of which would reasonably be expected to result in have a material adverse effect on the delisting business, assets, operations or suspension condition (financial or otherwise) of the Common Shares Corporation or which affects or may affect the distribution of the Subject Securities or the Underlying Securities and the Corporation is not aware of any existing ground on which any such action, suit or from proceeding might be commenced with any reasonable likelihood of success;
(k) each of the ExchangeCorporation and its Subsidiary has good title to all of its assets and undertakings (for the purpose of this clause, the foregoing is referred to as the "Interest") and its Interest is free and clear of adverse claims, except for security granted to Thomas Koll or the Toronto-Dominion Bank and for those arising xn the ordinary course of business;
(l) The Corporation is licensedthe proceeds received from the Offering shall be used substantially in the manner that shall be disclosed in the Preliminary Prospectus, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities conducted by it make licensing, registration or qualification necessary Prospectus and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdictionany Prospectus Amendment;
(m) The information Computershare Trust Company of Canada, at its principal offices in all documents filed by the City of Vancouver and the City of Toronto is the duly appointed Transfer Agent of the Common Shares and Computershare Trust Company of Canada shall at the Closing Time be the duly appointed Purchase Warrant Agent of the Purchase Warrants pursuant to the Purchase Warrant Indenture and as Special Warrant Agent of the Special Warrants pursuant to the Special Warrant Indenture;
(n) the audited annual financial statements of the Corporation with Canadian securities regulatory authorities (including in all documents filed as at xxx.xxxxx.xxx) (and for the “Disclosure Record”) wasyear ended December 31, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them 2000 contained in the Securities Act Corporation's annual report for the year ended December 31, 2000:
(British Columbia)). All information relating to i) have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding fiscal periods;
(ii) representfully, fairly and correctly the business, assets, liabilities, properties, capitalization or liabilities and financial condition of the Corporation provided by as at December 31, 2000 and the Corporation or any results of its advisers to operations and the Subscriber is true, accurate changes in its financial position for the year then ended;
(iii) are in accordance with the books and complete in all material respectsrecords of the Corporation; and
(niv) The contain and reflect all necessary adjustments for the fair presentation of the results of operations and the financial condition of the business of the Corporation for the period covered thereby;
(o) the unaudited consolidated interim financial statements of the Corporation and its subsidiaries own all Subsidiary as at and for the nine months ended September 30, 2001:
(i) have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with those of preceding periods;
(ii) represent fully, fairly and correctly the consolidated assets, liabilities and financial condition of the properties Corporation as at September 30, 2001 and assets that they purport to own 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 Corporation; and
(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 Corporation for the period covered thereby, and there has not been any material adverse change in the Disclosure Recordfinancial position of the Corporation, or its business, assets, liabilities or undertaking (absolute, accrued, contingent or otherwise) since September 30, 2001 other than as publicly disclosed;
(p) KPMG LLP, the auditors of the Corporation, are independent public accountants as required under Securities Law other than the state and federal securities laws of the United States and there has not been any disagreement (within the meaning of National Policy Statement No. Except 31) with the present or former auditors of the Corporation other than as disclosed in the Disclosure Information Record;
(q) there are no outstanding issues or disagreements with the auditors of the Corporation in connection with the financial statements of the Corporation for the year ended December 31, 2000 (the "Year-End Statements") or any fact or issue that would or could lead to a disagreement with the auditors;
(r) to the knowledge of the Corporation, there are no facts or issues relating to the Corporation that would require the auditors to provide a qualified report in connection with the Year-End Statements;
(s) the Corporation does not intend to have any write downs or any write-offs with respect to any of the Corporation's assets for the year ended December 31, 2001;
(t) the Corporation is not aware of any liability for which a reserve has not been previously made;
(u) since September 30, 2001, (i) there has not been any material change or a change in a material fact in the business, affairs, financial position, operations, business prospects, undertakings, assets, liabilities or obligations, contingent or otherwise or capital of the Corporation, and (ii) there has been no transaction entered into by the Corporation, other than those in the ordinary course of business or those that have been publicly disclosed;
(v) the Corporation is a "reporting issuer" in the Qualifying Provinces and is not in default under Securities Laws in the Qualifying Provinces. In particular, without limiting the foregoing, the Corporation is in compliance with its obligations to make timely disclosure of all agreements by material changes relating to it and since September 30, 2001 no such disclosure has been made on a confidential basis and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed;
(w) no portion of the Information Record contained a misrepresentation as at its date of public dissemination;
(x) the Special Warrants, Broker's Option, Fiscal Advisor Option or any Underlying Securities of the Corporation do not constitute "foreign property" within the meaning of the Income Tax Act (Canada), or its subsidiaries holds an any amendments thereto publicly announced by the Minister of Finance prior to that time;
(y) the Corporation is a Foreign Issuer and reasonably believes that there is no substantial U.S. market interest in a property or asset are in good standing in all material respects according to their terms.(as defined in
Appears in 1 contract
Representations and Warranties of the Corporation.
(1) The Corporation represents and warrants as follows to the Subscriber at Agents and to the date of this Agreement and at the Time of Closing Purchasers, and acknowledges and confirms that the Subscriber each of them is relying upon such representations and warranties in connection with the offer, sale and issuance completion of the Subscribed Shares to the SubscriberOffering, that:
(a) The the Corporation and its subsidiaries are corporations is a corporation incorporated and validly existing in good standing under the laws of the jurisdictions in which they are incorporatedBritish Columbia and have all necessary corporate power, continued or amalgamatedauthority and capacity to own, lease and operate its properties and assets and conduct its business as currently conducted;
(b) The execution each of the Subsidiaries are corporations incorporated and delivery of, validly existing under the laws of its respective jurisdictions and performance by the Corporation of this Agreement have been authorized by all necessary corporate action on the part of the Corporationpower, authority and capacity to own, lease and operate its properties and assets and conduct its business as currently conducted;
(c) This Agreement has the Corporation owns, directly or indirectly, all of the issued and outstanding shares or ownership interests of each of the Subsidiaries, free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares and interests have been duly executed authorized and delivered by validly issued and are outstanding as fully paid and non-assessable shares and interests and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation and constitutes a legalor the Subsidiaries of any interest in any of such shares or interests or for the issue or allotment of any unissued shares, valid and binding agreement interests or other securities in the capital of the Corporation enforceable against it in accordance with its termsSubsidiaries, including any other security convertible into or exchangeable for any such shares or interests;
(d) The other than in respect of certain United States federal laws relating to the cultivation, distribution or possession of cannabis in the United States, as disclosed in the Risk Factors in the Corporate Presentation, and other related judgments, orders or decrees (collectively, the “U.S. Cannabis Laws”), each of the Corporation and the Subsidiaries has conducted, and is conducting, its business in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on business except where the failure to so comply would not have a Material Adverse Effect. Without limiting the generality of the foregoing, to the knowledge of the Corporation, neither the Corporation nor any Subsidiaries has received a written notice of non- compliance, nor does it know of, nor have reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any such laws, regulations or permits (other than with respect to the U.S. Cannabis Laws);
(e) except for the U.S. Cannabis Laws, the Corporation is not aware of any pending or contemplated change to any applicable law, regulation or governmental position or rule of the Exchange that would materially adversely affect the business of the Corporation or the Subsidiaries or the business or legal environment under which the Corporation or the Subsidiaries operate;
(f) except for the U.S. Cannabis Laws, the Corporation and the Subsidiaries are duly qualified and hold all material permits, licences, registrations, permits, qualifications, consents and authorizations necessary or required to give any notice tocarry on their business as now conducted and to own, make any filing with lease or operate each of their assets and properties except where the failure to obtain any authorizationpermits, order licences, registrations, permits, qualifications, consents and authorizations would not have a Material Adverse Effect, and all such permits, licences, registrations, permits, qualifications, consents and authorizations are in full force and effect in accordance with their terms except where the failure to so maintain permits, licences, registrations, permits, qualifications, consents and authorizations would not have a Material Adverse Effect;
(g) the Corporation has all requisite corporate power and authority to create, issue and sell, as applicable, the Securities, and neither the Corporation nor the Subsidiaries nor, to the knowledge of the Corporation, any other Person, has taken any steps or other consent proceedings, voluntary or approval otherwise, requiring or authorizing the Corporation’s or any of any Person in connection with the Subsidiaries’ dissolution or winding up, and the Corporation and the Subsidiaries, as applicable, have all requisite corporate power and corporate authority to enter into each of the Operative Agreements to which it is a party;
(h) at the Closing Date, all consents, approvals, permits, authorizations or filings as may be required under Securities Laws or by the Exchange for the execution or and delivery of the Operative Agreements and the issue and sale, as applicable, of the Securities have been made or performance of its obligations under this Agreement or the consummation of obtained, as applicable, and the Offering, other than the Exchange’s acceptance final filings with the Exchange and receipt of the transactions contemplated hereinfinal Exchange approval and the filing with applicable securities commissions within the prescribed time periods of a report in Form 45-106F1;
(i) the execution and delivery of each of the Operative Agreements, the performance by the Corporation of its obligations thereunder and the issue and sale, as applicable, of the Securities, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (whether after notice or lapse of time or both): (i) any statute, rule or regulation applicable to the Corporation; (ii) the constating documents, articles, notice of articles or resolutions of the Corporation which are in effect at the date hereof; (iii) any material mortgage, note, indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which the Corporation is a party to or bound by; or (iv) any judgment, decree or order binding the Corporation or any of its assets and properties;
(j) neither the Corporation nor the Subsidiaries are in violation of its constating documents;
(k) at the Closing Time, the Operative Agreements shall have been duly authorized and executed by the Corporation and upon such execution each shall constitute a valid and binding obligation of the Corporation and each of the Operative Agreements shall be enforceable against the Corporation in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principals when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the filings required ability to sever unenforceable terms, may be made prior to or following Closing, under the rules of the Exchangelimited by applicable law;
(el) The the Debentures and the Warrants that comprise the Units will be duly and validly created, authorized and issued on payment of the Purchase Price therefor (or in the case of the Agents’ Securities, as consideration for the services performed by the Agents hereunder), such Debentures and Warrants having attributes corresponding in all material respects to the description thereof set forth in the Operative Agreements;
(m) upon exercise of any Warrants, the Debentures (other than the Initial Debentures) will be duly and validly created, authorized and issued, in accordance with their terms;
(n) on or prior to the Closing Date, the Corporation has complied shall have reserved a sufficient number of Common Shares for issuance upon the conversion of the Debentures in accordance with Applicable Securities Laws their terms;
(o) in connection with the offerissuance and sale, sale and issuance as applicable, of the Subscribed SharesSecurities, the Corporation will execute and file with Securities Regulators all forms, notices, reports and certificates required to be filed pursuant to applicable Securities Laws within the prescribed time periods;
(fp) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the Investor Services Inc. has been duly appointed as the registrar and transfer agent of the Corporation with respect to the Common Shares and on or prior to the Closing Date, (q) on or prior to the “Transfer Agent”)Closing Date, the Trustee will have been duly appointed as trustee under the Indentures;
(gr) The authorized capital except for the Previously Announced Acquisitions, neither the Corporation nor any of the Corporation consists Subsidiaries is currently party to any agreement in respect of:
(i) the purchase of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding (without giving effect to any material property or assets or any interest therein or the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the Corporation are fully paid and non-assessable. There are no other equity or voting securities of the Corporation outstandingsale, and there are no outstanding stock options, warrants transfer or other convertible securities disposition of any material assets and properties or instruments that may be converted into Common Sharesany interest therein currently owned, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation anddirectly or indirectly, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation or in violation the Subsidiaries, as applicable, whether by asset sale, transfer of any Applicable Securities Lawsshares or otherwise; or (ii) the change of control of the Corporation or the Subsidiaries, as applicable (whether by sale or transfer of shares or sale of all or substantially all of the assets and properties of the Corporation or the Subsidiary or otherwise);
(i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge condensed consolidated interim financial statements of the Corporation, there is no agreement between any shareholders or officers or directors of as applicable, for the Corporationsix months ended July 31, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities;
(j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as publicly disclosed, in any securities of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending2018; and (ii) the Corporation has not taken any action which would reasonably be expected audited financial statements for the years ended January 31, 2018 and January 31, 2017 (the “Financial Statements”) have been prepared in accordance with IFRS consistently applied throughout the periods referred to result in the delisting or suspension of the Common Shares on or from the Exchangetherein;
(lt) The Corporation is licensedexcept as disclosed to the Lead Agent, registered or qualified as an extra-provincial or foreign corporation in the Corporation’s Financial Statements accurately reflect all jurisdictions where the character of the property Corporation’s liabilities or assets thereof owned indebtedness (absolute, contingent, accrued or leased otherwise) of any kind whatsoever, whether or not of the nature normally required to be disclosed for financial statement purposes under IFRS, except for legal fees and other reasonable expenses incurred in connection with the transactions contemplated herein and except for any such liabilities and indebtedness incurred in connection with ongoing operations in the ordinary course of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance consistent with all applicable laws, rules and regulations of each such jurisdictionpast practices;
(mu) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) wasthere are no actions, at the time of such filingsuits, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected investigations or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization proceedings pending or financial condition of the Corporation provided by threatened against or affecting the Corporation or any of the Subsidiaries at law or in equity, or before any arbitrator of any kind, or before or by any Governmental Body, domestic or foreign, and, except for the U.S. Cannabis Laws, the Corporation is not aware of any existing ground on which any such action or proceeding might be commenced with any reasonable likelihood of success. Neither the Corporation nor any of the Subsidiaries is subject to any outstanding orders, writs, injunctions, decrees, judgments, awards, determinations, work orders or directions of any court, arbitrator or Governmental Body;
(v) except for the Previously Announced Acquisitions, the Operative Agreements and agreements entered into in the ordinary course, neither the Corporation nor any of the Subsidiaries is a party to, or otherwise bound by, any agreement, written or oral, including with respect to any indebtedness, guarantee, indemnification, lease or joint venture;
(w) except in connection with the Previously Announced Acquisitions, neither the Corporation nor any of the Subsidiaries is committed to make any capital expenditures, nor have any capital expenditures been authorized by the Corporation or the Subsidiaries;
(x) except in connection with the Previously Announced Acquisitions, neither the Corporation nor any of the Subsidiaries, as applicable, has directly or indirectly: (i) made or authorized any loans to any Person, including its advisers officers, directors, former directors, shareholders and employees and any person not dealing at arm’s length with any of the foregoing; (ii) made any payments or distributions in kind to its shareholders or former shareholders or declared any dividends on the outstanding common shares of the Corporation or other securities of the Corporation; or (iii) agreed to do any of the foregoing;
(y) except as disclosed to the Subscriber is true, accurate Agents and complete in all material respects; and
(n) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except as disclosed in its public filings, the Disclosure RecordCorporation has no employees or consultants;
(z) neither the Corporation nor any of the Subsidiaries is in material breach or default, all agreements by has not received any notice of default or violation, and is not aware of any potential or threatened notice of alleged default or violation, of the provisions of any contracts, agreements, indentures or instruments to which the Corporation or its subsidiaries holds an interest in any Subsidiary is a property party or asset by which it is bound;
(aa) except for the U.S. Cannabis Laws, all laws, regulations, and orders of any Governmental Body having jurisdiction over the Corporation and the Subsidiaries are in good standing being, and have been, complied with in all material respects according by the Corporation;
(bb) the Corporation is a taxable Canadian Corporation within the meaning of the Tax Act;
(cc) the Corporation and the Subsidiaries have in a due and timely manner, filed or caused to their terms.be filed all Returns and all information and data in connection therewith, required to be filed by the Corporation and the Subsidiaries or on the Corporation’s and the Subsidiaries’ behalf with any Governmental Body to whom the Corporation and each of the Subsidiaries is subject;
(dd) all Returns filed by the Corporation and the Subsidiaries are true, complete and correct in all material respects and all Taxes shown to be payable on the Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by the Corporation and the Subsidiaries with respect to items or periods covered by such Returns;
(ee) the Corporation and the Subsidiaries have paid all Taxes and any interest, penalties and fines in connection therewith, properly due and payable, and has paid all of same in connection with all known assessments, reassessments and adjustments;
(ff) no material deficiencies exist or have been asserted with respect to Taxes of the Corporation and the Subsidiaries, as applicable, and no other Taxes nor any interest, penalties and fines have been claimed by any Governmental Body or are known to the Corporation and the Subsidiaries, as applicable, to be due and owning by the Corporation and the Subsidiaries or are pending or threatened (including all tax instalments) or by reason of the transactions herein contemplated will become due and owing by the Corporation and the Subsidiaries, as applicable, and there are no matters of dispute or under discussion with any Governmental Body, relating to Taxes by such Governmental Body; (gg) the Corporation has withheld all amounts required to be withheld, including without limiting the generality of the foregoing, all amounts required to be withheld under the Tax Act, for employee deductions, unemployment insurance, the Canada Pension Plan and Goods and Services Tax payable under the Excise Tax Act (Canada) and any other amounts required by law to be withheld from any payments made to non-residents and any of its officers, directors and employees, and has paid the same to the proper taxing authority or receiving offices where the deadline for such payment has occurred, on a timely basis;
Appears in 1 contract
Samples: Agency Agreement
Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the Subscriber at Underwriters and to the date of this Agreement and at the Time of Closing Purchasers, and acknowledges and confirms that the Subscriber each of them is relying upon such representations and warranties in connection with the offerOffering, sale and issuance of the Subscribed Shares to the Subscriberthat:
(a) The the Corporation and its subsidiaries are corporations incorporated each Subsidiary has been duly incorporated, amalgamated, continued or formed, and organized and is validly existing in good standing under the laws of the jurisdictions jurisdiction in which they are it was incorporated, amalgamated, continued or amalgamatedformed, as the case may be, and no steps or proceedings have been taken by any Person, voluntary or otherwise, requiring or authorizing the dissolution or winding up of the Corporation or any Subsidiary;
(b) The execution and delivery of, and performance by the Corporation and each Subsidiary is duly qualified to carry on its business in each jurisdiction in which the conduct of this Agreement have been authorized by its business or the ownership, leasing or operation of its Assets and Properties requires such qualification and has all necessary requisite corporate action on power, capacity and authority to conduct its business and own, lease and operate its Assets and Properties and to execute, deliver and perform its obligations under the part of Transaction Documents to which it is a party and any other document, filing, instrument or agreement delivered in connection with the CorporationOffering;
(c) This Agreement has been duly executed and delivered by other than the Subsidiaries, the Corporation has no direct or indirect subsidiaries or any investment or except as disclosed in the Disclosure Documents, proposed investment in any Person which would otherwise be material to the business and constitutes a legal, valid and binding agreement affairs of the Corporation enforceable against it in accordance with its termson a consolidated basis;
(d) The the Corporation and each Subsidiary: (i) conducts and has been conducting its business in compliance in all material respects with all applicable Laws of each state and local jurisdiction in which its business is not required carried on or in which its services are provided and neither the Corporation nor any Subsidiary has received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any notice to, make any filing with or obtain any authorization, order or other consent or approval of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offeringsuch Laws, other than the Exchange’s acceptance San Francisco Letter, in respect of which the matters of non-compliance set out therein have been resolved such that the Hometown Permit is in good standing and not subject to revocation as a result of the transactions contemplated hereincircumstances set out in the San Francisco Letter, and (ii) except for the filings required to be made prior to U.S. Marijuana Laws, is not in breach or following Closingviolation of any judgment, under order or decree of any Governmental Authority having jurisdiction over the rules of the ExchangeCorporation or such Subsidiary, as applicable;
(e) The the Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance directly owns all of the Subscribed Shares;
(f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”);
(g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and preferred shares without par value of which 48,730,165 Common Shares are issued and outstanding securities of each Subsidiary (without giving effect to other than Hometown Heart, which is managed by the Common Shares subscribed for Corporation under this Agreement). The outstanding Common Shares the Hometown MSA) and all of the Corporation are fully paid issued and non-assessable. There are no other equity or voting outstanding securities of the Corporation outstanding, and there Subsidiaries are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares;
(h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable sharessecurities. Other than liens in favour of the lenders under the Credit Facility Agreement, all of the issued and will not have been issued in violation outstanding securities of each Subsidiary (other than Hometown Heart, by virtue of the Hometown Option Agreement) are free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or subject to demands whatsoever and no Person has any agreement, option, right or privilege (whether pre-emptive rights or other contractual rights to contractual) capable of becoming an agreement, for the purchase securities issued by from the Corporation or in violation any Subsidiary of any Applicable Securities Lawsinterest in any of the securities or other interests in the capital of such Subsidiary;
(f) neither Herban Industries NJ LLC, Herban Industries CO LLC, Herban Industries NV LLC or DionyMed, Inc.: (i) The is material to the business of the Corporation is not taken as a whole; (ii) hold any material property or assets; (iii) are party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between material Contract; or
(iv) carry on any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securitiesactive business;
(jg) The other than material assets or properties which the Corporation and its subsidiaries have not committed or any Subsidiary is in the process of purchasing an act of bankruptcyinterest as described in the Disclosure Documents, are not insolvent, have not proposed a compromise or arrangement the Hometown Shares which Herban has an irrevocable right to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect acquire pursuant to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Hometown Option Agreement and has sufficient capital to satisfy other than liens on the “going concern” test under Canadian generally accepted accounting principles;
(k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares assets of the Corporation and the Subsidiaries in favour of the lenders under the Credit Facility Agreement (A) the Corporation and each Subsidiary is the absolute legal and beneficial owner, and has good and valid title to, all of the material Assets and Properties thereof as described in the Disclosure Documents, including all Contracts that are currently listed material to the business of the Corporation and posted for trading on the Exchange Subsidiaries taken as a whole, free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever and no order ceasing other material assets or suspending trading, other than as publicly disclosed, in any securities properties are necessary for the conduct of the business of the Corporation or prohibiting the sale or issuance of the Subscribed Shares or the trading of any of the Corporation’s issued securities has been issued Subsidiaries as currently conducted and no as presently proposed to be conducted, (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation, are pending; and (iiB) the Corporation has does not taken know of any action which would reasonably be expected to result in the delisting or suspension of the Common Shares on or from the Exchange;
(l) The Corporation is licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased claim or the nature of basis for any claim that might or could materially and adversely affect the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in material compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) The information in all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at xxx.xxxxx.xxx) (the “Disclosure Record”) was, at the time of such filing, accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or updated in a subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the Securities Act (British Columbia)). All information relating to the business, assets, liabilities, properties, capitalization or financial condition right of the Corporation provided by or the Corporation Subsidiaries to use, transfer or any of its advisers to the Subscriber is trueotherwise exploit such Assets and Properties, accurate and complete in all material respects; and
(nC) The Corporation and its subsidiaries own all of the properties and assets that they purport to own in the Disclosure Record. Except other than as disclosed in the Disclosure RecordDocuments, all agreements by which neither the Corporation nor any Subsidiary has any responsibility or its subsidiaries holds an interest in a property obligation to pay any commission, royalty, licence fee or asset are in good standing in all material respects according similar payment to their terms.any Person with respect to the Assets and Properties thereof;
Appears in 1 contract
Samples: Underwriting Agreement
