Representations, Warranties and Covenants of the Agents. Each Agent (on its own behalf and on behalf of its U.S. Affiliate, if applicable) severally (and not jointly or jointly and severally) represents, warrants, covenants and agrees to and with the Company that: (a) it acknowledges that the Securities have not been and will not be offered or sold within the United States except pursuant to the exemption from the registration requirements of the 1933 Act provided by Section 4(a)(2) of the 1933 Act or outside the United States in accordance with Regulation S. It has not offered or sold, and will not offer or sell, any of the Securities constituting part of its allotment except (i) outside the United States in accordance with Regulation S or (ii) in the United States, as provided in Sections 4(b) through 4(j) below. Neither it nor its affiliates, nor any persons acting on its or their behalf have engaged or will engage in any Directed Selling Efforts in the United States with respect to the Securities; (b) it shall require each of its U.S. Affiliates and the Selling Firms to agree for the benefit of the Company to comply with and shall ensure that each of its U.S. Affiliates and the Selling Firms complies with the same provisions of this Schedule as apply to such Agent; (c) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States shall be made through its U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. Such U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States; (d) it will not, either directly or through its U.S. Affiliate, solicit offers for, or offer to sell the Securities in the United States by means of any form of General Solicitation or General Advertising or engage in any conduct involving a public offering within the meaning of Section 4(a)(2) of the 1933 Act; (e) immediately prior to soliciting offerees purchasing Securities in the United States, it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer and, at the time of completion of each sale of Securities in the United States, will have reasonable grounds to believe and will believe that such purchaser is a Qualified Institutional Buyer; (f) on the Closing Date, each Agent (together with its U.S. Affiliate) that participated in the offer or sale of Securities in the United States will provide the Company with a certificate, substantially in the form of Appendix I to this Schedule A, relating to the manner of the offer and sale of the Securities in the United States, or will be deemed to have represented and warranted for the benefit of the Company that neither it nor its U.S. Affiliate offered or sold any Securities in the United States; (g) neither it, its affiliates or any person acting on its or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities; (h) each offeree of Securities in the United States has been or shall be provided with a copy of the U.S. Offering Memorandum, and no other written material has been or shall be used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment; (i) it will provide the Company, at least one Business Day prior to the Closing Date with a list of all purchasers of the Securities in the United States; and (j) prior to any sale of Securities in the United States, each such purchaser will be required to execute and deliver a U.S. Purchaser Subscription Letter. In connection with the offer and sale of Securities of New Found Gold Corp. (the “Company”) in the United States pursuant to the Agency Agreement dated July 31, 2020 among the Company, and the Agents (the “Agency Agreement”), [name of Agent] (the “Agent”) and [name of U.S. affiliate of Agent], in its capacity as placement agent in the United States for the Agent (the “U.S. Affiliate”), each hereby certifies that: (a) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States were made through the U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. The U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States; (b) all offers and sales of the Securities in the United States have been conducted by us in accordance with the terms of the Agency Agreement; (c) each offeree of Securities in the United States has been provided with a copy of the U.S. Offering Memorandum and any Offering Memorandum Amendment, as applicable, and no other written material has been used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment; (d) immediately prior to soliciting offerees purchasing Securities in the United States it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer and, on the date hereof, it continues to believe and has reasonable grounds to believe that each purchaser is a Qualified Institutional Buyer; (e) no form of General Solicitation or General Advertising or Directed Selling Efforts were used by us in connection with the offer or sale of the Securities in the United States; and (f) neither we nor our affiliates or any person acting on our or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no certification is made) have taken or will take, directly or indirectly, any action in relation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities in the United States. Capitalized terms used in this certificate have the meanings given to them in the Agency Agreement unless otherwise defined herein. DATED this ________ day of ________________________, 2020. [NAME OF AGENT] [INSERT NAME OF U.S. AFFILIATE] By: By: Name: Name: Title: Title:
Appears in 1 contract
Representations, Warranties and Covenants of the Agents. Each Agent (on its own behalf and on behalf of its U.S. Affiliate, if applicable) severally (and not jointly or jointly and severally) represents, warrants, covenants and agrees to and with the Company that:
(a) it acknowledges that the Securities have not been and will not be offered or sold within the United States except pursuant to the exemption from the registration requirements of the 1933 Act provided by Section 4(a)(2) of the 1933 Act or outside the United States in accordance with Regulation S. It has not offered or sold, and will not offer or sell, any of the Securities constituting part of its allotment except (i) outside the United States in accordance with Regulation S or (ii) in the United States, as provided in Sections 4(b) through 4(j) below. Neither it nor its affiliates, nor any persons acting on its or their behalf have engaged or will engage in any Directed Selling Efforts in the United States with respect to the Securities;
(b) it shall require each of its U.S. Affiliates and the Selling Firms to agree for the benefit of the Company to comply with and shall ensure that each of its U.S. Affiliates and the Selling Firms complies with the same provisions of this Schedule as apply to such Agent;
(c) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States shall be made through its U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. Such U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States;
(d) it will not, either directly or through its U.S. Affiliate, solicit offers for, or offer to sell the Securities in the United States by means of any form of General Solicitation or General Advertising or engage in any conduct involving a public offering within the meaning of Section 4(a)(2) of the 1933 Act;
(e) immediately prior to soliciting offerees purchasing Securities in the United States, it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer and, at the time of completion of each sale of Securities in the United States, will have reasonable grounds to believe and will believe that such purchaser is a Qualified Institutional Buyer;
(f) on the Closing Date, each Agent (together with its U.S. Affiliate) that participated in the offer or sale of Securities in the United States will provide the Company with a certificate, substantially in the form of Appendix I to this Schedule A, relating to the manner of the offer and sale of the Securities in the United States, or will be deemed to have represented and warranted for the benefit of the Company that neither it nor its U.S. Affiliate offered or sold any Securities in the United States;
(g) neither it, its affiliates or any person acting on its or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities;
(h) each offeree of Securities in the United States has been or shall be provided with a copy of the U.S. Offering Memorandum, and no other written material has been or shall be used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(i) it will provide the Company, at least one Business Day prior to the Closing Date with a list of all purchasers of the Securities in the United States; and
(j) prior to any sale of Securities in the United States, each such purchaser will be required to execute and deliver a U.S. Purchaser Subscription Letter. In connection with the offer and sale of Securities of New Found Gold Corp. (the “Company”) in the United States pursuant .
Appendix I to the Agency Agreement dated July 31, 2020 among the Company, and the Agents (the “Agency Agreement”), [name of Agent] (the “Agent”) and [name of U.S. affiliate of Agent], in its capacity as placement agent in the United States for the Agent (the “U.S. Affiliate”), each hereby certifies that:Schedule A
(a) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States were made through the U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. The U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States;
(b) all offers and sales of the Securities in the United States have been conducted by us in accordance with the terms of the Agency Agreement;
(c) each offeree of Securities in the United States has been provided with a copy of the U.S. Offering Memorandum and any Offering Memorandum Amendment, as applicable, and no other written material has been used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(d) immediately prior to soliciting offerees purchasing Securities in the United States it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer and, on the date hereof, it continues to believe and has reasonable grounds to believe that each purchaser is a Qualified Institutional Buyer;
(e) no form of General Solicitation or General Advertising or Directed Selling Efforts were used by us in connection with the offer or sale of the Securities in the United States; and
(f) neither we nor our affiliates or any person acting on our or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no certification is made) have taken or will take, directly or indirectly, any action in relation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities in the United States. Capitalized terms used in this certificate have the meanings given to them in the Agency Agreement unless otherwise defined herein. DATED this ________ day of ________________________, 2020. [NAME OF AGENT] [INSERT NAME OF U.S. AFFILIATE] By: By: Name: Name: Title: Title:
Appears in 1 contract
Representations, Warranties and Covenants of the Agents. Each Agent (on its own behalf and on behalf of its U.S. Affiliate, if applicable) severally (and not jointly or jointly and severally) represents, warrants, covenants and agrees to and with the Company that:
(a) it acknowledges that the Securities have not been and will not be offered or sold within to, or for the account or benefit of, U.S. Persons or persons in the United States except pursuant to the exemption from the registration requirements of the 1933 Act provided afforded by Section 4(a)(2) of the 1933 Act thereof, or outside the United States in accordance an Offshore Transaction in compliance with Regulation S. It has not offered or sold, and will not offer or sell, any of the Securities constituting part of its allotment except in the United States to persons reasonably believed by it to be Qualified Institutional Buyers or Institutional Accredited Investors in transactions exempt from the registration requirements of the 1933 Act pursuant to Section 4(a)(2) thereof; or (iii) outside the United States in accordance an Offshore Transaction in compliance with Regulation S or (ii) in the United StatesS, as provided in Sections 4(b) through 4(j4(n) below. Neither it nor its affiliates, nor any persons acting on its or their behalf have engaged or will engage in any Directed Selling Efforts in the United States with respect to the Securities;
(b) it has not entered and will not enter into any contractual arrangement with respect to the distribution of the Securities, except with its U.S. Affiliate, any Selling Firms or with the prior written consent of the Company. It shall require each of its U.S. Affiliates and the Selling Firms to agree for the benefit of the Company to comply with and shall ensure that each of its U.S. Affiliates and the Selling Firms complies with the same provisions of this Schedule B as apply to such Agent;
(c) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States shall be made through its U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Actrequirements. Such U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States;
(d) it will not, either directly or through its U.S. Affiliate, solicit offers for, or offer to sell sell, the Securities in the United States by means of any form of General Solicitation or General Advertising or engage in any conduct involving a public offering within the meaning of Section 4(a)(2) of the 1933 ActAct in connection with its offers or sales of the Securities in the United States;
(e) it will inform, and cause its U.S. Affiliate to inform, all purchasers of the Securities in the United States, that the Securities have not been and will not be registered under the 1933 Act or applicable state securities laws and are being sold to them without registration under the 1933 Act in reliance on Section 4(a)(2) thereof, and in each case under applicable state securities laws in reliance on similar exemptions thereunder;
(f) immediately prior to soliciting offerees purchasing Securities in the United States, it had a pre-existing relationship with and reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer or an Institutional Accredited Investor and, at the time of completion of each sale of Securities in the United States, it will have reasonable grounds to believe and will believe that such purchaser is a Qualified Institutional BuyerBuyer or an Institutional Accredited Investor;
(fg) on the Closing Date, each Agent (together with its U.S. Affiliate) that participated in the offer or sale of Offered Securities in the United States will provide the Company with a certificate, substantially in the form of Appendix I to this Schedule AB, relating to the manner of the offer and sale of the Offered Securities in the United States, or will be deemed to have represented and warranted for the benefit of the Company that neither it nor its U.S. Affiliate offered or sold any Offered Securities in the United States;
(gh) on the Over-Allotment Option Closing Date, each Agent (together with its U.S. Affiliate) that participated in the offer or sale of Over-Allotment Units in the United States will provide the Company with a certificate, substantially in the form of Appendix I to this Schedule B, relating to the manner of the offer and sale of the Over-Allotment Units in the United States, or will be deemed to have represented and warranted for the benefit of the Company that neither it nor its U.S. Affiliate offered or sold any Over-Allotment Units in the United States;
(i) neither it, its affiliates or any person acting on its or their behalf (other than the Company, its affiliates and any person acting on its their behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities;
(hj) each offeree of Securities in the United States has been or shall be provided with a copy of the U.S. Offering MemorandumDocuments, as applicable, and no other written material has been or shall be used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(ik) it will provide the Company, at least one Business Day prior to the Closing Date Date, with a list of all purchasers of the Offered Securities in the United States; and;
(jl) it will provide the Company, at least one Business Day prior to any Over-Allotment Option Closing Date, with a list of all purchasers of the Over-Allotment Units in the United States;
(m) prior to any sale of Securities in the United StatesStates to Qualified Institutional Buyers, each such purchaser will be required to execute and deliver a U.S. Purchaser Subscription QIB Purchaser's Letter; and
(n) prior to any sale of Securities in the United States to Institutional Accredited Investors, each such purchaser will be required to execute and deliver a U.S. IAI Purchaser's Letter. In connection with the offer and sale of Securities of New Found Gold Corp. Phivida Holdings Inc. (the “"Company”") in the United States pursuant to the Agency Agreement dated July 31November , 2020 2017 among the Company, Company and the Agents (the “"Agency Agreement”"), [name of Agent] (the “"Agent”") and [name of U.S. affiliate of Agent], in its capacity as placement agent in the United States for the Agent (the “"U.S. Affiliate”"), each hereby certifies that:
(a) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States or to, or for the account or benefit of, U.S. Persons were made through the U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Actrequirements. The U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United StatesStates or to, or for the account or benefit of, U.S. Persons;
(b) all offers and sales of the Securities in the United States or to, or for the account or benefit of, U.S. Persons have been conducted by us in accordance with the terms of the Agency Agreement;
(c) each offeree of Securities in the United States or each offeree of Securities that is, or is purchasing for the account or benefit of, a U.S. Person has been provided with a copy of the U.S. Offering Memorandum Documents and any Offering Memorandum Amendment, as applicable, and no other written material has been used in connection with the offer or sale of the Securities in the United StatesStates or to, or for the account or benefit of, U.S. Persons, other than the marketing materials and any Marketing Materials Amendment;
(d) immediately prior to soliciting offerees purchasing Securities in the United States it had a pre-existing relationship with and reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer or an Institutional Accredited Investor and, on the date hereof, it continues to believe and has reasonable grounds to believe that each purchaser is a Qualified Institutional BuyerBuyer or an Institutional Accredited Investor;
(e) no form of General Solicitation or General Advertising or Directed Selling Efforts were used by us in connection with the offer or sale of the Securities in the United States; andStates or to, or for the account or benefit of, U.S. Persons;
(f) all purchasers of the Securities in the United States or who are, or are purchasing for the account or benefit of, U.S. Persons or who were offered the Securities in the United States have been informed that the Securities have not been and will not be registered under the 1933 Act and are being offered and sold to such purchasers without registration in reliance on exemptions from the registration requirements of the 1933 Act;
(g) neither we nor our affiliates or any person acting on our or their behalf (other than the Company, its affiliates and any person acting on its their behalf, as to which no certification is made) have taken or will take, directly or indirectly, any action in relation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities in the United States. Capitalized States or to, or for the account or benefit of, U.S. Persons; and
(h) all offers and sales of the Securities have been conducted by us in accordance with the terms used in this certificate have the meanings given to them in of the Agency Agreement unless otherwise defined herein. DATED this ________ day of ________________________Agreement, 2020. [NAME OF AGENT] [INSERT NAME OF U.S. AFFILIATE] By: By: Name: Name: Title: Title:including Schedule B thereto.
Appears in 1 contract
Samples: Agency Agreement
Representations, Warranties and Covenants of the Agents. Each Agent (on its own behalf and on behalf of its respective U.S. AffiliatePlacement Agent) severally, if applicable) severally (and but not jointly or jointly and severally) represents, warrants, covenants and agrees to and with the Company that:
(a) it acknowledges that the Securities Offered Shares have not been and will not be offered registered under the U.S. Securities Act or any U.S. state securities laws and may not be offered, sold or delivered, directly or indirectly, to any U.S. Person or any person within the United States States, except to Qualified Institutional Buyers or to Accredited Investors pursuant to the an available exemption from the registration requirements of the 1933 U.S. Securities Act provided by Section 4(a)(2and similar exemptions under applicable state securities laws. Accordingly, the Agent (on its own behalf and on behalf of its U.S. Placement Agent) severally, but not jointly or jointly and severally, represents, warrants and covenants to the Corporation, as of the 1933 Act or outside date hereof and as of the Closing Date, and will cause its U.S. Placement Agent to comply with such representations, warranties and covenants, that:
1. Except with respect to offers and sales in accordance with this Schedule “A” to Accredited Investors (including Qualified Institutional Buyers) in the United States in accordance with Regulation S. It and/or to U.S. persons pursuant to an available exemption from registration under the U.S. Securities Act and applicable exemptions under state securities laws, it has not offered or and sold, and will not offer or and sell, any of the Securities constituting Offered Shares forming part of its allotment except (i) outside the United States only in an Offshore Transaction in accordance with Rule 903 of Regulation S S, or (ii) in the United States, as provided in Sections 4(b) through 4(j) belowthis Schedule “A”. Neither it nor Accordingly, none of such Agent, its affiliates, nor affiliates or any persons acting on its or their behalf have engaged behalf, has made or will engage make (except as permitted in any Directed Selling Efforts in the United States with respect to the Securities;
(b) it shall require each of its U.S. Affiliates and the Selling Firms to agree for the benefit of the Company to comply with and shall ensure that each of its U.S. Affiliates and the Selling Firms complies with the same provisions of this Schedule as apply to such Agent;
“A”): (ci) all offers any offer to sell and solicitations or any solicitation of offers an offer to buy and buy, any sales of Offered Shares to any Securities in the United States shall be made through its U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements Person or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. Such U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities person in the United States;
; (dii) it will not, either directly or through its U.S. Affiliate, solicit offers for, or offer any sale of Offered Shares to sell the Securities in the United States by means of any form of General Solicitation or General Advertising or engage in any conduct involving a public offering within the meaning of Section 4(a)(2) of the 1933 Act;
(e) immediately prior to soliciting offerees purchasing Securities in the United States, it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer andpurchaser unless, at the time of completion of each sale of Securities in the United States, buy order was or will have reasonable grounds to believe and will believe that such been originated, the purchaser is a Qualified Institutional Buyer;
(f) on the Closing Date, each Agent (together with its U.S. Affiliate) that participated in the offer or sale of Securities in the United States will provide the Company with a certificate, substantially in the form of Appendix I to this Schedule A, relating to the manner of the offer and sale of the Securities in was outside the United States, or will be deemed to have represented and warranted for the benefit of the Company that neither it nor its U.S. Affiliate offered or sold any Securities in the United States;
(g) neither itsuch Agent, its affiliates or any person persons acting on its or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities;
(h) each offeree of Securities in reasonably believed that such purchaser was outside the United States has been or shall be provided with a copy of the U.S. Offering Memorandum, and no other written material has been or shall be used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(i) it will provide the Company, at least one Business Day prior to the Closing Date with a list of all purchasers of the Securities in the United States; and
(j) prior to any sale of Securities in the United States, each such purchaser will be required to execute and deliver a U.S. Purchaser Subscription Letter. In connection with the offer and sale of Securities of New Found Gold Corp. (the “Company”) in the United States pursuant to the Agency Agreement dated July 31, 2020 among the Company, and the Agents (the “Agency Agreement”), [name of Agent] (the “Agent”) and [name of U.S. affiliate of Agent], in its capacity as placement agent in the United States for the Agent (the “U.S. Affiliate”), each hereby certifies that:
(a) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States were made through the U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. The U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States;
(b) all offers and sales of the Securities in the United States have been conducted by us in accordance with the terms of the Agency Agreement;
(c) each offeree of Securities in the United States has been provided with a copy of the non-U.S. Offering Memorandum and any Offering Memorandum Amendment, as applicable, and no other written material has been used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(d) immediately prior to soliciting offerees purchasing Securities in the United States it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer and, on the date hereof, it continues to believe and has reasonable grounds to believe that each purchaser is a Qualified Institutional Buyer;
(e) no form of General Solicitation or General Advertising or Directed Selling Efforts were used by us in connection with the offer or sale of the Securities in the United StatesPerson; and
(f) neither we nor our affiliates or any person acting on our or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no certification is made) have taken or will take, directly or indirectly, any action in relation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities in the United States. Capitalized terms used in this certificate have the meanings given to them in the Agency Agreement unless otherwise defined herein. DATED this ________ day of ________________________, 2020. [NAME OF AGENT] [INSERT NAME OF U.S. AFFILIATE] By: By: Name: Name: Title: Title:or
Appears in 1 contract
Samples: Agency Agreement
Representations, Warranties and Covenants of the Agents. Each Agent (on represents and warrants and covenants to the Corporation and Canada Iron, and will cause its own behalf U.S. Affiliate to comply with such representations, warranties and covenants, that:
1. it acknowledges, on behalf of its itself and the U.S. Affiliate, if applicable) severally (and not jointly or jointly and severally) represents, warrants, covenants and agrees to and with the Company that:
(a) it acknowledges that the Offered Securities have not been and will not be registered under the U.S. Securities Act or any U.S. state securities laws, and may be offered and sold only in transactions exempt from or not subject to the registration requirements of the U.S. Securities Act and applicable U.S. state securities laws. The Subscription Receipts may be offered and sold within in the United States except or to, or for the account or benefit of, a U.S. Person only pursuant to the exemption from the registration requirements of the 1933 U.S. Securities Act provided by Section 4(a)(2Rule 506(b) of Regulation D and in accordance with applicable U.S. state securities laws, and the 1933 Act or Subscription Receipts may be offered and sold outside the United States only in accordance with Rule 903 of Regulation S. It has not offered or soldAccordingly, and will not offer or sellneither the Agent, any of nor the Securities constituting part of its allotment except (i) outside the United States in accordance with Regulation S or (ii) in the United States, as provided in Sections 4(b) through 4(j) below. Neither it nor its affiliatesU.S. Affiliate, nor any persons acting on its or their behalf behalf: (i) have engaged or will engage in any Directed Selling Efforts in Efforts, General Solicitation or General Advertising; or (ii) except as permitted by this Schedule “A”, have made or will make (x) any offers to sell the Offered Securities to U.S. Purchasers or (y) any sale of Subscription Receipts unless at the time the purchaser made its buy order therefor, the Agent, the U.S. Affiliate or other person acting on any of their behalf reasonably believed that such U.S. Purchaser was outside the United States and was not a U.S. Person;
2. it has not entered and will not enter into any contractual arrangement with respect to the Securities;
(b) it distribution of the Subscription Receipts, except with its affiliates or otherwise with the prior written consent of the Corporation. The Agent shall require each of cause its U.S. Affiliates and the Selling Firms Affiliate to agree agree, for the benefit of the Company Corporation, to comply with with, and shall ensure that each of its the U.S. Affiliates and the Selling Firms Affiliate complies with with, the same provisions of this Schedule “A” as apply to such the Agent;
(c) 3. all offers to sell and solicitations of offers to buy and any sales of any Securities Subscription Receipts in the United States or to, or for the account or benefit of, a U.S. Person made by the Agent have been and shall be made solely through its the U.S. Affiliate in compliance with all applicable United States state Affiliate, which is, and federal broker-dealer requirements or pursuant to on the exemption provided under Rule 15a-6 dates of the 1934 Act. Such U.S. Affiliate is a such offers and sales was and will be, duly registered broker-as a broker or dealer with the SEC under Section 15(b) of the 1934 U.S. Exchange Act and under the securities laws of all states in which such offer or sale was made (unless exempt from such states’ broker-dealer registration requirements) and a member of, and in good standing with, FINRA, in accordance with all applicable United States federal and state securities laws and a member in good standing regulations, including those governing the registration and conduct of FINRA on the date hereof brokers and at the date of any offer or sale of the Securities dealers;
4. that each offeree in the United States, each offeree that is a U.S. Purchaser has been or will be provided with a copy of the same information regarding the Corporation and the Offering as has been or will be provided by the Agents to offerees and Purchasers of Subscription Receipts in Canada;
5. any offer, sale or solicitation of an offer to buy the Offered Securities that has been made or will be made (di) it to U.S. Purchasers, was or will notbe made only to Qualified Institutional Buyers or U.S. Accredited Investors in transactions that are exempt from the registration requirements pursuant to Rule 506(b) of Regulation D and exempt from registration under all applicable state securities laws, and (ii) to persons outside the United States (other than U.S. Persons) will be made in transactions that are exempt from registration pursuant to Rule 903 of Regulation S;
6. neither the Agent nor its affiliates, either directly or through a person acting on its U.S. Affiliateor their behalf, solicit offers forhave engaged in or will engage in any form of Directed Selling Efforts, General Solicitation or General Advertising in connection with the offer to sell and sale of the Offered Securities in the United States by means of any form of General Solicitation or General Advertising to, or for the account or benefit of, a U.S. Person or have otherwise engaged or will engage in any conduct involving a public offering within the meaning of Section 4(a)(2) of the 1933 Act;
(e) immediately prior to soliciting offerees purchasing U.S. Securities Act in connection with the offer and sale of the Offered Securities in the United StatesStates or to, it had reasonable grounds or for the account or benefit of, a U.S. Person;
7. immediately prior to believe and did believe that each offeree was offering the Offered Securities to a Qualified Institutional Buyer and, at the time of completion of each sale of Securities person in the United StatesStates or to, or for the account or benefit of, a U.S. Person the Agent or the U.S. Affiliate had or will have reasonable grounds to believe and did or will believe that such purchaser offeree is or was a Qualified Institutional Buyer or a U.S. Accredited Investor, and at the applicable Closing Time, the Agent and the U.S. Affiliate shall have reasonable grounds to believe and shall believe that each U.S. Purchaser purchasing the Subscription Receipts is a Qualified Institutional BuyerBuyer or a U.S. Accredited Investor;
(f) on 8. prior to the Closing Datecompletion of any sale of the Subscription Receipts to a U.S. Purchaser, each Agent (together with its such U.S. Purchaser will be required by the Agents, acting through the U.S. Affiliate) that participated , to execute and deliver a Subscription Agreement in the appropriate form;
9. prior to making any offer or sale of Securities to an offeree in the United States or for the account or benefit of a U.S. Person, the Agent or the U.S. Affiliate had and shall have a pre-existing substantive relationship with each such offeree;
10. prior to the applicable Closing Date, the Agent will cause the U.S. Affiliate to provide the Corporation and the transfer agent for the Subscription Receipts with a list of all U.S. Purchasers of Subscription Receipts (with state or territory of residence) and copies of all completed and executed Subscription Agreements obtained from such U.S. Purchasers;
11. at the applicable Closing Time, the Agent, together with the U.S. Affiliate, will provide the Company with a certificate, substantially in the form of Appendix Exhibit I to this Schedule “A”, relating to the manner of the offer and sale of the Securities Subscription Receipts in the United StatesStates or to, or for the account or benefit of, a U.S. Person or will be deemed to have represented that they did not offer or sell Subscription Receipts to U.S. Purchasers;
12. it will inform, and warranted for the benefit of the Company that neither it nor cause its U.S. Affiliate offered to inform, each U.S. Purchaser that: (i) the Offered Securities have not been and will not be registered under the U.S. Securities Act or under state securities laws; (ii) the Subscription Receipts are being sold any to it without registration under the U.S. Securities Act in reliance on Rule 506(b) of Regulation D and in reliance upon exemptions from applicable U.S. state securities laws; (iii) the United States;
(g) neither itSubscription Receipts, its affiliates or any person acting on its or their behalf (other than the CompanyUnderlying Shares, its affiliates the Underlying Warrants and any person acting on its behalf, as to which no representation is made) has taken the Warrant Shares are or will takebe, when issued, “restricted securities” within the meaning of Rule 144 of the U.S. Securities Act and can only be offered, sold, pledged or otherwise transferred, directly or indirectly, any action to the Corporation or outside the United States to non- U.S. Persons in violation of Regulation M accordance with an applicable exemption under the 1934 U.S. Securities Act and in connection compliance with local laws and regulations, or only if such securities are registered under the offer U.S. Securities Act and sale any applicable state securities laws; and (iv) the Resulting Issuer Shares, the Resulting Issuer Warrants and the Resulting Issuer Warrant Shares are or will be, when issued, “restricted securities” within the meaning of Rule 144 of the Securities;
(h) each offeree of U.S. Securities Act and may not be offered or sold in the United States has been or shall be provided with a copy to, or for the account or benefit of the U.S. Offering Memorandum, and no other written material has been or shall be used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(i) it will provide the Company, at least one Business Day prior to the Closing Date with a list of all purchasers of the Securities in the United States; and
(j) prior to any sale of Securities in the United States, each such purchaser will be required to execute and deliver a U.S. Purchaser Subscription Letter. In connection with the offer and sale of Securities of New Found Gold Corp. (the “Company”) in the United States pursuant to the Agency Agreement dated July 31Person unless offered, 2020 among the Companysold, and the Agents (the “Agency Agreement”), [name of Agent] (the “Agent”) and [name of U.S. affiliate of Agent], in its capacity as placement agent in the United States for the Agent (the “U.S. Affiliate”), each hereby certifies that:
(a) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States were made through the U.S. Affiliate in compliance with all applicable United States state and federal broker-dealer requirements pledged or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. The U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States;
(b) all offers and sales of the Securities in the United States have been conducted by us in accordance with the terms of the Agency Agreement;
(c) each offeree of Securities in the United States has been provided with a copy of the U.S. Offering Memorandum and any Offering Memorandum Amendment, as applicable, and no other written material has been used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(d) immediately prior to soliciting offerees purchasing Securities in the United States it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer and, on the date hereof, it continues to believe and has reasonable grounds to believe that each purchaser is a Qualified Institutional Buyer;
(e) no form of General Solicitation or General Advertising or Directed Selling Efforts were used by us in connection with the offer or sale of the Securities in the United States; and
(f) neither we nor our affiliates or any person acting on our or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no certification is made) have taken or will takeotherwise transferred, directly or indirectly, any action to the Resulting Issuer or outside the United States in relation accordance with Rule 904 of Regulation M S and in compliance with local laws and regulations, or such securities are registered under the 1934 U.S. Securities Act and any applicable state securities laws, or an exemption from such registration is available or such registration is otherwise not required;
13. it represents that none of (i) the Agent or the U.S. Affiliate, (ii) the Agent or the U.S. Affiliate’s general partners or managing members, (iii) any of the Agent’s or the U.S. Affiliate’s directors, executive officers or other officers participating in the offering of the Offered Securities, (iv) any of the Agent’s or the U.S. Affiliate’s general partners’ or managing members’ directors, executive officers or other officers participating in the offering of the Offered Securities or (v) any other person associated with any of the above persons that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the offer and sale of Subscription Receipts, the Securities Resulting Issuer Shares and the Resulting Issuer Warrants (each, a “Dealer Covered Person” and, collectively, the “Dealer Covered Persons”), is subject to any Disqualification Event except for a Disqualification Event (a) covered by Rule 506(d)(2) of Regulation D and (b) a description of which has been furnished in writing to the United StatesCorporation prior to the date hereof;
14. Capitalized terms used it is not aware of any person (other than any Dealer Covered Person, the other Agents and their Dealer Covered Persons) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in this certificate have connection with the meanings given sale of any Subscription Receipts or Resulting Issuer Shares and Resulting Issuer Warrants. It will notify the Corporation, prior to them the applicable Closing Date, and Canada Iron, prior to the Escrow Release Date, of any agreement entered into between it and such person in the Agency Agreement unless otherwise defined herein. DATED this ________ day of ________________________, 2020. [NAME OF AGENT] [INSERT NAME OF U.S. AFFILIATE] By: By: Name: Name: Title: Title:connection with such sale;
Appears in 1 contract
Samples: Agency Agreement
Representations, Warranties and Covenants of the Agents. Each Agent (on its own behalf represents and on behalf of warrants and covenants, and will cause its U.S. AffiliateAffiliate to comply with such representations, if applicable) severally (warranties and not jointly or jointly and severally) representscovenants, warrants, covenants and agrees to and with the Company Company, as at the date hereof and as at the Closing Date, that:
(a) 1. it acknowledges acknowledges, on behalf of itself and the U.S. Affiliate, that the Securities have not been and will not be registered under the U.S. Securities Act or any U.S. state securities laws, and may be offered and sold only in transactions exempt from or not subject to the registration requirements of the U.S. Securities Act and applicable U.S. state securities laws. The Subscription Receipts may be offered and sold within in the United States except only pursuant to the exemption from the registration requirements of the 1933 U.S. Securities Act provided by Section 4(a)(2Rule 506(b) of Regulation D and similar exemptions under applicable U.S. state securities laws, and the 1933 Act or Subscription Receipts may be offered and sold outside the United States only in accordance with Rule 903 of Regulation S. It has not offered or soldAccordingly, and will not offer or sellneither the Agent, any of nor the Securities constituting part of its allotment except (i) outside the United States in accordance with Regulation S or (ii) in the United States, as provided in Sections 4(b) through 4(j) below. Neither it nor its affiliatesU.S. Affiliate, nor any persons acting on its or any of their behalf behalf: (i) have engaged or will engage in any Directed Selling Efforts Efforts; or (ii) except as permitted by this Schedule "A", have made or will make (x) any offers to sell or any solicitations or offers to buy Subscription Receipts to persons in the United States or (y) any sale of Subscription Receipts unless at the time the purchaser made its buy order therefor, the Agent, the U.S. Affiliate or other person acting on any of their behalf reasonably believed that such U.S. Purchaser was outside the United States;
2. it has not entered and will not enter into any contractual arrangement with respect to the Securities;
(b) it shall require each offer and sale of the Subscription Receipts, except with its U.S. Affiliates Affiliate, a Selling Firm or otherwise with the prior written consent of the Company. The Agent shall cause its U.S. Affiliate and the any Selling Firms Firm appointed by it to agree agree, for the benefit of the Company Company, to comply with with, and shall ensure that each of its the U.S. Affiliates Affiliate and the such Selling Firms Firm complies with with, the same provisions of this Schedule "A" as apply to such the Agent;
(c) 3. all offers to sell and solicitations of offers to buy and any sales of any Securities Subscription Receipts in the United States made by the Agent have been and shall be made solely through its the U.S. Affiliate in compliance with all applicable United States state Affiliate, which is, and federal broker-dealer requirements or pursuant to on the exemption provided under Rule 15a-6 dates of the 1934 Act. Such U.S. Affiliate is a such offers and sales was and will be, duly registered broker-as a broker or dealer with the SEC under Section 15(b) of the 1934 U.S. Exchange Act and applicable state under the securities laws of all states in which such offer or sale was made (unless exempt from such states' broker-dealer registration requirements) and a member of, and in good standing of FINRA on the date hereof and at the date of any offer or sale of the Securities in the United States;
(d) it will notwith, either directly or through its U.S. Affiliate, solicit offers for, or offer to sell the Securities in the United States by means of any form of General Solicitation or General Advertising or engage in any conduct involving a public offering within the meaning of Section 4(a)(2) of the 1933 Act;
(e) immediately prior to soliciting offerees purchasing Securities in the United States, it had reasonable grounds to believe and did believe that each offeree was a Qualified Institutional Buyer and, at the time of completion of each sale of Securities in the United States, will have reasonable grounds to believe and will believe that such purchaser is a Qualified Institutional Buyer;
(f) on the Closing Date, each Agent (together with its U.S. Affiliate) that participated in the offer or sale of Securities in the United States will provide the Company with a certificate, substantially in the form of Appendix I to this Schedule A, relating to the manner of the offer and sale of the Securities in the United States, or will be deemed to have represented and warranted for the benefit of the Company that neither it nor its U.S. Affiliate offered or sold any Securities in the United States;
(g) neither it, its affiliates or any person acting on its or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no representation is made) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities;
(h) each offeree of Securities in the United States has been or shall be provided with a copy of the U.S. Offering Memorandum, and no other written material has been or shall be used in connection with the offer or sale of the Securities in the United States, other than the marketing materials and any Marketing Materials Amendment;
(i) it will provide the Company, at least one Business Day prior to the Closing Date with a list of all purchasers of the Securities in the United States; and
(j) prior to any sale of Securities in the United States, each such purchaser will be required to execute and deliver a U.S. Purchaser Subscription Letter. In connection with the offer and sale of Securities of New Found Gold Corp. (the “Company”) in the United States pursuant to the Agency Agreement dated July 31, 2020 among the Company, and the Agents (the “Agency Agreement”), [name of Agent] (the “Agent”) and [name of U.S. affiliate of Agent]FINRA, in its capacity as placement agent in the United States for the Agent (the “U.S. Affiliate”), each hereby certifies that:
(a) all offers to sell and solicitations of offers to buy and any sales of any Securities in the United States were made through the U.S. Affiliate in compliance accordance with all applicable United States state federal and federal broker-dealer requirements or pursuant to the exemption provided under Rule 15a-6 of the 1934 Act. The U.S. Affiliate is a duly registered broker-dealer with the SEC under Section 15(b) of the 1934 Act and applicable state securities laws and a member in good standing regulations, including those governing the registration and conduct of FINRA on the date hereof brokers and at the date of any offer or sale of the Securities in the United Statesdealers;
(b) all offers and sales of the Securities in the United States have been conducted by us in accordance with the terms of the Agency Agreement;
(c) 4. each offeree of Securities in the United States has been provided with a copy of the same information regarding the Company and the Offering as has been provided by the Agents to offerees and Purchasers of Subscription Receipts in Canada. Each person offered Subscription Receipts in the United States by the Agent through the U.S. Offering Memorandum Affiliate has been or shall be provided with a copy of the Corporate Presentation and any Offering Memorandum Amendment, as applicablethe Subscription Agreement, and no other written material has been used in connection with by the offer Agent or sale the U.S. Affiliate (without the prior written consent of the Securities Company);
5. any offer, sale or solicitation of an offer to buy Subscription Receipts that has been made or will be made (i) in the United States, other than was or will be made only to persons the marketing materials Agent and any Marketing Materials Amendment;
the U.S. Affiliate reasonably believe to be Qualified Institutional Buyers or U.S. Accredited Investors in transactions that are exempt from the registration requirements of the U.S. Securities Act pursuant to Rule 506(b) of Regulation D and similar exemptions under applicable state securities laws, and (dii) immediately prior outside the United States in transactions that are exempt from registration pursuant to soliciting Rule 903 of Regulation S; 6. all offerees purchasing Securities of Subscription Receipts solicited by the Agent through the U.S. Affiliate in the United States it had reasonable grounds and all U.S. Purchasers solicited by the Agent through the U.S. Affiliate shall be informed that the Subscription Receipts have not been and will not be registered under the U.S. Securities Act and the Subscription Receipts are being offered and sold to believe and did believe that each offeree was a Qualified Institutional Buyer and, such persons in reliance on the date hereof, it continues to believe and has reasonable grounds to believe that each purchaser is a Qualified Institutional Buyer;
(e) no form of General Solicitation or General Advertising or Directed Selling Efforts were used by us in connection with exemption from the offer or sale registration requirements of the U.S. Securities in the United States; and
(fAct provided by Rule 506(b) neither we nor our affiliates or any person acting on our or their behalf (other than the Company, its affiliates and any person acting on its behalf, as to which no certification is made) have taken or will take, directly or indirectly, any action in relation of Regulation M D and similar exemptions under the 1934 Act in connection with the offer and sale of the Securities in the United States. Capitalized terms used in this certificate have the meanings given to them in the Agency Agreement unless otherwise defined herein. DATED this ________ day of ________________________, 2020. [NAME OF AGENT] [INSERT NAME OF applicable U.S. AFFILIATE] By: By: Name: Name: Title: Title:state securities laws
Appears in 1 contract
