Representations, Warranties and Covenants of the Underwriters. (a) Each of the Underwriters, severally and not jointly, represents, warrants and covenants to the Company and the Guarantors that: (1) Such Underwriter has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent of the Company. (2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) under the 1933 Act to any prospective purchaser of the Securities to the extent required under applicable law. (3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter. (4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects. (5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement. (6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state: (i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication; (ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or (iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state. (7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom. (b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement (Residential Capital, LLC), Underwriting Agreement (Residential Capital, LLC)
Representations, Warranties and Covenants of the Underwriters. (1) The Underwriters represent and warrant to, and covenant with, the Corporation (and acknowledge that the Corporation is relying on such representations, warranties and covenants) as follows:
(a) Each the Underwriters shall complete, and use all commercially reasonable efforts to cause each Selling Firm to complete, the Offering of the Subscription Receipts as soon as reasonably practicable in compliance with Applicable Securities Laws;
(b) the Underwriters shall promptly notify the Corporation when, in their opinion, the Underwriters and the Selling Firms have ceased offering of the Subscription Receipts and provide a breakdown of the number of Subscription Receipts distributed in each of the Offering Jurisdictions where such breakdown is required for the purpose of calculating fees payable to the Regulatory Authorities and the breakdown of the number of Subscription Receipts distributed in jurisdictions other than the Offering Jurisdictions;
(c) the Underwriters shall comply, and shall require any U.S. Affiliate or Selling Firm to comply, with Applicable Securities Laws in connection with the distribution of the Subscription Receipts and to offer the Subscription Receipts for sale, on a private placement basis, to Substituted Purchasers directly and through Selling Firms upon the terms and conditions set out in this Agreement and the Subscription Agreements. The Underwriters shall, and shall require any Selling Firm to agree to, offer for sale the Subscription Receipts only in those jurisdictions where they may be lawfully offered for sale or sold; and
(d) each of the Underwriters, severally and not jointly, represents, warrants and covenants to the Company and the Guarantors that:
(1i) Such will conduct its activities in connection with the proposed offer and sale of the Subscription Receipts in compliance with all Applicable Securities Laws;
(ii) has or will have taken steps to reasonably confirm that each Purchaser meets the conditions of the particular exemption from the prospectus requirement under Applicable Securities Laws that such Purchaser relied on in their particular Subscription Agreement;
(iii) is a registered dealer in the Offering Jurisdictions where such Underwriter has not offers and sells the Subscription Receipts to Purchasers and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent remain so registered until completion of the CompanyOffering; and
(iv) will cause each U.S. Affiliate and will require each Selling Firm appointed by it to be bound by the provisions of this Agreement.
(2) Such Underwriter will not enter into a contract of sale with any prospective purchaser The representations, warranties and obligations of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) under the 1933 Act to any prospective purchaser of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability Underwriters under this Section 3(a)(5) to the extent that 13 are several and not joint. No Underwriter will be liable for any noncompliance with applicable law may arise out of act, omission, default or be based upon (i) conduct by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus other Underwriter or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting AgreementSelling Firm appointed by another Underwriter.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement
Representations, Warranties and Covenants of the Underwriters. (a) Each of the Underwriters, severally and not jointly, represents, warrants and covenants to the Company and the Guarantors that:
(1) Such Underwriter has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent of the Company.
(2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) under the 1933 Act to any prospective purchaser of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section section
21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
Representations, Warranties and Covenants of the Underwriters. (a) Each of the UnderwritersUnderwriters hereby severally, severally and not jointlyjointly nor jointly and severally, represents, warrants and covenants to the Company and acknowledges that the Guarantors Company is relying upon such representations and warranties in completing the Offering, that:
(1a) Such in respect of the offer and sale of the Offered Securities, each Underwriter will conduct its activities in connection with the Offering and comply with all applicable Securities Laws and the provisions of this Agreement;
(b) the Underwriters shall only sell the Offered Securities in accordance with Securities Laws and to persons:
(i) purchasing as principal or deemed to be purchasing as principal under Securities Laws or purchasing as authorized agents on behalf of a disclosed principal; and
(ii) qualified to purchase the Offered Securities under the applicable Requirements in the Selling Jurisdictions or in such other jurisdictions as may be agreed to by the Company and the Underwriters;
(c) the Underwriters shall ensure that any dealer who is appointed by an Underwriter pursuant to this Agreement agrees in writing to comply with the covenants and obligations given by the Underwriters herein;
(d) notwithstanding the foregoing provisions of this Section 6, an Underwriter will not be liable to the Company under this Section 6 with respect to a default under this Section 6 by another Underwriter;
(e) at least one of the Underwriters is duly registered in the appropriate category of dealer under the Securities Laws in each of the Selling Jurisdictions, and in Selling Jurisdictions in which no Underwriter is so registered, the Underwriters will, if required by Securities Laws, act only through members of a selling group who are so registered;
(f) it has not and will not usesolicit offer, authorize use ofsell, refer totrade, distribute or participate otherwise do any act in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including furtherance of a term sheet substantially in the form of Exhibit A hereto, without the consent trade of the Company.
Offered Securities so as to require the filing of a prospectus or offering memorandum with respect thereto or the provision of a contractual right of action (2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the as defined in Ontario Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Commission Rule 173(a14-501) under the 1933 Act to laws of any prospective purchaser jurisdiction;
(g) none of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorizedUnderwriters, executed and delivered by any of their respective affiliates or any person acting on behalf of such Underwriter.
(4) The information furnished by the foregoing have made or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon make: (i) any untrue statement offer to sell, or alleged untrue statement any solicitation of an offer to buy, any Offered Securities to a material fact contained person in the Registration Statement, the Disclosure Package United States or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accountsU.S. Person; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
Samples: Underwriting Agreement
Representations, Warranties and Covenants of the Underwriters. (a1) Each of the UnderwritersUnderwriter hereby severally, severally and not jointly, representsnor jointly and severally, represents and warrants and covenants to the Company and the Guarantors Corporation that:
(1a) Such Underwriter has not it is, and will not useremain so, authorize use of, refer to, or participate in until the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent completion of the CompanyOffering, appropriately registered under Applicable Securities Laws so as to permit it to lawfully fulfill its obligations hereunder; and
(b) it has good and sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein.
(2) Such Underwriter The Underwriters hereby covenant and agree with the Corporation to the following:
(a) the Underwriters will not enter into a contract of comply with Applicable Securities Laws in connection with the offer and sale with any prospective purchaser and distribution of the Securities until Offered Shares;
(b) the Disclosure Package has been conveyed Underwriters shall not, directly or indirectly, solicit offers to purchase or sell the Offered Shares or deliver any Offering Document so as to require registration of the Offered Shares or filing of a prospectus or registration statement with respect to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) Offered Shares under the 1933 Act laws of any jurisdiction other than the Offering Jurisdictions;
(c) the Underwriters will use their commercially reasonable efforts to any prospective purchaser complete the distribution of the Securities Offered Shares as promptly as possible after the Closing Time, but in any event no later than seven Business Days following the date of exercise of the entire Over-Allotment Option, if exercised;
(d) the Underwriters shall notify the Corporation when, in the Underwriters’ opinion, the Underwriters have ceased distribution of the Offered Shares, and will promptly provide the Corporation, in writing, with a breakdown of the number of Offered Shares distributed in each of the Qualifying Jurisdictions where that breakdown is required by the Qualifying Authority of that jurisdiction for the purpose of calculating fees payable to that Qualifying Authority; and
(e) no Underwriter shall be liable to the extent required Corporation under applicable lawthis section with respect to a default by any of the other Underwriters.
(3) This Underwriting The Corporation agrees that the Underwriters are acting severally and not jointly (or jointly and severally) in performing their respective obligations under this Agreement has been duly authorizedand that no Underwriter shall be liable for any act, executed and delivered omission or conduct by or on behalf of such any other Underwriter.
(4) The information furnished by or on behalf of such No Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus that is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, non-resident for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters ITA will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliancerender any services under this Agreement in Canada.
Appears in 1 contract
Representations, Warranties and Covenants of the Underwriters. 9.1 Each Underwriter hereby severally, and not jointly, nor jointly and severally, represents and warrants to the Company that:
(a) Each it is, and will remain so, until the completion of the Offering, appropriately registered under Applicable Securities Laws so as to permit it to lawfully fulfill its obligations hereunder, and it has complied with its obligations under Applicable Securities Laws;
(b) it has all requisite power and authority to enter into, deliver and carry out its obligations under this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein; and
(c) no finder’s fee or compensation will be paid to any Purchaser or related party for the Offering.
9.2 The Underwriters hereby covenant and agree with the Company to the following:
(a) the Underwriters will comply with Applicable Securities Laws in connection with the offer and sale and Distribution of the Offered Shares;
(b) the Underwriters will use their commercially reasonable efforts to complete the Distribution of the Offered Shares as promptly as possible after the Closing Time, but in any event no later than seven Business Days following the date of exercise of the entire Over-Allotment Option, if exercised; and
(c) no Underwriter shall be liable to the Company under this section with respect to a default by any of the other Underwriters.
9.3 The Company agrees that the Underwriters are acting severally and not jointly (or jointly and severally) in performing their respective obligations under this Agreement and that no Underwriter shall be liable for any act, omission or conduct by any other Underwriter or another Underwriter’s duly registered broker-dealer Affiliate in the United States or any Selling Firm.
9.4 No Underwriter that is a non-resident for purposes of the Income Tax Act will render any services under this Agreement in Canada.
9.5 Each Underwriter, severally and not jointly, represents, warrants and covenants to with the Company and the Guarantors that:
(1) Such Underwriter has not and will not use, authorize use of, refer to, or participate to take any action that would result in the planning for use of, any Company being required to file with the SEC pursuant to Rule 433-(d) under the Securities Act a Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent of the Company.
(2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) under the 1933 Act to any prospective purchaser of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered prepared by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or otherwise would not be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication filed by the Company of a prospectus pursuant to Article 3 thereunder but for the action of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member stateUnderwriter.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
Representations, Warranties and Covenants of the Underwriters. (a) Each of the UnderwritersUnderwriters hereby severally, severally and not jointlyjointly nor jointly and severally, represents, warrants and covenants to the Company and acknowledges that the Guarantors Company is relying upon such representations and warranties in completing the Offering, that:
(1a) Such in respect of the offer and sale of the Offered Securities, each Underwriter will conduct its activities in connection with the Offering and comply with all applicable Securities Laws and the provisions of this Agreement;
(b) the Underwriters shall only sell the Offered Securities in accordance with Securities Laws and to persons who represent themselves as being:
(i) persons purchasing as principal or deemed to be purchasing as principal under Securities Laws or purchasing as authorized agents on behalf of a disclosed principal; and
(ii) qualified to purchase the Offered Securities under the applicable Requirements in the Selling Jurisdictions or in such other jurisdictions as may be agreed to by the Company and the Underwriters;
(c) the Underwriters shall ensure that any dealer who is appointed by an Underwriter pursuant to this Agreement agrees in writing to comply with the covenants and obligations given by the Underwriters herein;
(d) notwithstanding the foregoing provisions of this Section 6, an Underwriter will not be liable to the Company under this Section 6 with respect to a default under this Section 6 by another Underwriter;
(e) at least one of the Underwriters is duly registered in the appropriate category of dealer under the Securities Laws in each of the Selling Jurisdictions, and in Selling Jurisdictions in which no Underwriter is so registered, the Underwriters will, if required by Securities Laws, act only through members of a selling group who are so registered;
(f) it has not and will not usesolicit offer, authorize use ofsell, refer totrade, distribute or otherwise do any act in furtherance of a trade of the Offered Securities so as to require the filing of a prospectus or offering memorandum with respect thereto or the provision of a contractual right of action (as defined in OSC Rule 14-501) under the laws of any jurisdiction;
(g) none of the Underwriters, any of their respective affiliates or any person acting on behalf of the foregoing have made or will make (i) any offer to sell, or participate any solicitation of an offer to buy, any Offered Securities to a person in the planning for use ofUnited States or a U.S. Person; or (ii) any sale or facilitate any sale, as applicable, of Offered Securities to any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially person in the form United States or a U.S. Person, except in compliance with Schedule “A” hereto;
(h) neither the Underwriters nor their respective affiliates, or any person acting on behalf of Exhibit A heretothe foregoing, without have engaged or will engage in any Directed Selling Efforts;
(i) no selling or promotional expenses will be paid or incurred in connection with the Offering, except for professional services or for services performed by a registered dealer;
(j) it will not make available to prospective Subscribers any document or material that would constitute an offering memorandum, preliminary prospectus or prospectus, as applicable, as defined under the applicable Securities Laws and the United States federal and state securities laws nor will it conduct its activities so as to require the filing of a prospectus or offering memorandum and will cause similar covenants to be contained in any agreement with any selling firms in connection with the Offering;
(k) it will not trade in Offered Securities or otherwise do any act in furtherance of a trade of Offered Securities outside of the Selling Jurisdictions, except as contemplated in the Subscription Agreements, this Agreement or otherwise with the prior consent of the Company., not to be unreasonably withheld or delayed;
(2l) Such Underwriter it will not enter into a contract of sale with any prospective purchaser of advertise the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) under the 1933 Act to any prospective purchaser of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and proposed sale of the Offered Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to in printed media of general and regular paid circulation, or broadcast over radio or television or otherwise conduct any seminar or meeting concerning the extent that any noncompliance with applicable law may arise out of offer or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light sale of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package Offered Securities where attendees have been invited by general solicitation or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.general advertising;
(6m) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction solicit subscriptions for Offered Securities except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from terms and including the relevant implementation date, make an offer conditions of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publicationthis Agreement;
(iin) at any time to legal entities which are authorized it will obtain from each Subscriber an executed Subscription Agreement and such forms as may be required by the Governmental Authorities or regulated to operate in other similar regulatory authority or the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, Company as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication supplied by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.such agent; and
(7) Such Underwriter represents and agrees that: (io) it has only communicated or caused to be communicated and will only communicate provide or cause to be communicated any invitation provided to the Company all necessary information in respect of such agent and the Subscribers to allow the Company to file, with the Governmental Authorities or inducement to engage in investment activity (within the meaning of section 21 other similar regulatory authority, if required, reports of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with trades of the issue or sale of any Offered Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; accordance with applicable Securities Law and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United KingdomCSE policies.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
Samples: Underwriting Agreement
Representations, Warranties and Covenants of the Underwriters. (a) Each of the UnderwritersUnderwriters hereby, severally and not jointlyjointly nor jointly and severally, represents, warrants and covenants to and with the Company and acknowledges that the Guarantors Company is relying upon such representations, warranties and covenants, that:
(1a) Such Underwriter has in respect of the offer and sale of the Special Warrants to Purchasers (including the Substituted Purchasers), the Underwriters will, and will require any Selling Firm and will cause the U.S. Placement Agents to agree to, comply with applicable Canadian Securities Laws and the applicable securities laws of the Selling Jurisdictions outside of Canada in connection with the issuance and sale of the Special Warrants, and will offer the Special Warrants for sale to the Substituted Purchasers on a “private placement exempt” basis directly and if deemed appropriate by the Underwriters, through Selling Firms, upon the terms and conditions set out in this Agreement;
(b) the Underwriters have offered and will offer, and will require any Selling Firm to offer, for sale to potential purchasers (including the Substituted Purchasers) on a “private placement exempt” basis and sell the Special Warrants only in the Selling Jurisdictions where they may be lawfully offered for sale and sold;
(c) the Underwriters, the U.S. Placement Agents and their respective representatives have not engaged in or authorized, and will not engage in or authorize, activities that would constitute Directed Selling Efforts in the United States with respect to the Special Warrants or Underlying Shares or any form of General Solicitation or General Advertising in connection with or in respect of the Special Warrants or the Underlying Shares;
(d) the Underwriters have not and will not usesolicit offers to purchase or sell the Special Warrants so as to require the filing of a prospectus, authorize use of, refer toregistration statement or offering memorandum, or participate similar document with respect thereto, subject the Company to continuous disclosure obligations in any jurisdiction in which it is not already subject to same, or require the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including provision of a term sheet substantially contractual right of action (as defined in the form of Exhibit A hereto, without the consent of the Company.
(2Ontario Securities Commission Rule 14-501 – Definitions) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) statutory right of action under the 1933 Act to any prospective purchaser laws of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the SecuritiesSelling Jurisdictions, except as may be expressly provided for in this Agreement;
(e) the Underwriters will not, will cause the U.S. Placement Agents not to, and will require any Selling Firm to agree not to, directly or indirectly, offer, solicit offers to purchase or distribute sell the Disclosure Package Special Warrants to Purchasers so as to require registration of the Special Warrants or the Prospectus Underlying Shares or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication filing of a prospectus or registration statement in relation respect thereof under the securities laws of the United States or subject the Company to continuous disclosure obligations thereunder, and will cause the U.S. Placement Agents and require any Securities Selling Firm to agree that has been approved by any offer or sale of Special Warrants in the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all United States will be made only in accordance with the Prospectus Directive, except that it may, with effect from terms and including the relevant implementation date, make an offer of any Securities to the public conditions set out in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publicationSchedule “A“ hereto;
(iif) at any time the Underwriters will obtain from each Purchaser a duly completed and executed Subscription Agreement and other forms required under Canadian Securities Laws or the applicable securities laws of the Selling Jurisdictions outside of Canada for execution by Purchasers relating to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securitiesissuance and sale of the Special Warrants;
(iiig) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 each of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase Underwriters or subscribe for any Securitiestheir affiliates, as the same case may be varied in that member state be, is registered or exempt from registration under the applicable Canadian Securities Laws or under the laws of any other Selling Jurisdiction to conduct the activities contemplated by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.this Agreement; and
(7h) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 Beacon will, on behalf of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale Underwriters, provide a completion of any Securities in circumstances in which section 21(1) of the FSMA does not apply distribution certificate to the Company; and (ii) it has complied and will comply with all applicable provisions of Company as soon as practicable following the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United KingdomClosing Date.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
Samples: Underwriting Agreement
Representations, Warranties and Covenants of the Underwriters. 3.1 The Underwriters hereby represent, warrant and covenant with the Company that they will (a) Each and will use their commercially reasonable best efforts to cause the members of the Underwriters, severally Selling Group to): (i) conduct and have conducted activities in connection with arranging for the sale of the Offered Securities in compliance with the Applicable Securities Laws; (ii) not jointly, represents, warrants solicit and covenants have not solicited offers to purchase or sell the Company and the Guarantors that:
(1) Such Underwriter has not and will not use, authorize use Offered Securities so as to require registration of, refer or filing of a prospectus, offering memorandum or similar disclosure document with respect to, or participate in the planning for use ofOffered Securities (or, if applicable, the Underlying Shares to be issued upon the automatic exercise the Subscription Receipts), under the laws of any Free Writing Prospectus other than an Issuer Free Writing Prospectusjurisdiction, including a term sheet substantially in the form of Exhibit A heretoUnited States or any state thereof, and not, without the consent of the Company.
(2) Such Underwriter will not enter into a contract of sale with Company or as otherwise contemplated in this agreement, solicit offers to purchase or sell the Offered Securities in any prospective purchaser jurisdiction outside of the Qualifying Provinces where the solicitation or sale of the Offered Securities until would result in any ongoing disclosure requirements in such jurisdiction, any registration requirements in such jurisdiction except for the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or filing of a notice pursuant to Rule 173(a) under the 1933 Act to any prospective purchaser or report of the Securities solicitation or sale, or where the Company may be subject to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that liability in connection with the offering and sale of the Offered Securities which is materially more onerous than its liability under, taken together, the Applicable Securities Laws in the Qualifying Provinces and the applicable securities legislation to which it will comply with applicable law provided that such Underwriter shall have no liability under is subject as at the date of this Section 3(a)(5agreement; (iii) obtain from each Purchaser an executed Subscription Agreement in a form reasonably acceptable to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except Company and to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material Underwriters relating to the Securitiestransactions herein contemplated, in or from any jurisdiction except under circumstances that will, to the best knowledge together with all documentation (including questionnaires and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved undertakings required by the competent authority Exchange) as may be necessary in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance connection with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial yearsubscriptions for Offered Securities; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant refrain and have refrained from providing to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression prospective purchasers an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (offering memorandum within the meaning of section 21 Applicable Securities Laws and from advertising the Offering in (A) printed media of general and regular paid circulation, (B) radio, (C) television, or (D) telecommunication (including electronic display) and not make use of any green sheet or other internal marketing document without the consent of the Financial Services Company, such consent to be promptly considered and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Companybe unreasonably withheld; and (iiv) it has complied and will comply with all applicable provisions of use their commercially reasonable best efforts to ensure that the FSMA with respect to anything done by it in relation Offered Securities are not sold to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions Purchaser which is known to them to be delivered to engaged in or carrying on the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth business of the foregoing representations and hereby consent to such reliancemining or mineral exploration or development.
Appears in 1 contract
Representations, Warranties and Covenants of the Underwriters. (a) Each of the UnderwritersUnderwriters hereby severally, severally and not jointlyjointly nor jointly and severally, represents, warrants and covenants to the Company and acknowledges that the Guarantors Company is relying upon such representations and warranties in completing the Offering, that:
(1a) Such in respect of the offer and sale of the Offered Securities, each Underwriter will conduct its activities in connection with the Offering and comply with all applicable Securities Laws and the provisions of this Agreement;
(b) the Underwriters shall only sell the Offered Securities in accordance with Securities Laws and to persons who represent themselves as being:
(i) persons purchasing as principal or deemed to be purchasing as principal under Securities Laws or purchasing as authorized agents on behalf of a disclosed principal; and
(ii) qualified to purchase the Offered Securities under the applicable Requirements in the Selling Jurisdictions or in such other jurisdictions as may be agreed to by the Company and the Underwriters;
(c) the Underwriters shall ensure that any dealer who is appointed by an Underwriter pursuant to this Agreement agrees in writing to comply with the covenants and obligations given by the Underwriters herein;
(d) notwithstanding the foregoing provisions of this Section 6, an Underwriter will not be liable to the Company under this Section 6 with respect to a default under this Section 6 by another Underwriter;
(e) at least one of the Underwriters is duly registered in the appropriate category of dealer under the Securities Laws in each of the Selling Jurisdictions, and in Selling Jurisdictions in which no Underwriter is so registered, the Underwriters will, if required by Securities Laws, act only through members of a selling group who are so registered;
(f) it has not and will not usesolicit offer, authorize use ofsell, refer totrade, distribute or participate otherwise do any act in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including furtherance of a term sheet substantially in the form of Exhibit A hereto, without the consent trade of the Company.
Offered Securities so as to require the filing of a prospectus or offering memorandum with respect thereto or the provision of a contractual right of action (2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to as defined in OSC Rule 173(a14-501) under the 1933 Act to laws of any prospective purchaser jurisdiction;
(g) none of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorizedUnderwriters, executed and delivered by any of their respective affiliates or any person acting on behalf of such Underwriter.
(4) The information furnished by the foregoing have made or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon make (i) any untrue statement offer to sell, or alleged untrue statement any solicitation of an offer to buy, any Offered Securities to a material fact contained person in the Registration Statement, the Disclosure Package United States or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof U.S. Person; or (ii) any sale or facilitate any sale, as applicable, of Offered Securities to any person in the failure of the Company United States or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offera U.S. Person, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a Schedule “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publicationB” hereto;
(iih) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company Compensation Warrants and the Guarantors andCompensation Shares have not been and will not be registered under the U.S. Securities Act, and the Compensation Warrants may not be exercised in the United States or by, or for purposes the account or benefit of, any U.S. Person or person in the United States, except pursuant to an exemption from the registration requirements of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.U.S.
Appears in 1 contract
Samples: Underwriting Agreement
Representations, Warranties and Covenants of the Underwriters. (a) Each of the UnderwritersUnderwriters hereby severally represent, severally warrant and not jointly, represents, warrants and covenants covenant to the Company Corporation and acknowledge that the Guarantors Corporation is relying upon such representations and warranties, that:
(1i) Such the Underwriters will only sell the Units in accordance with Securities Laws and to persons who represent themselves as being:
(A) persons purchasing as principal or deemed to be purchasing as principal under Securities Laws or purchasing as authorized agents on behalf of a disclosed principal; and
(B) qualified to purchase the Units under the applicable Requirements in the Qualifying Provinces, or on an exempt private placement basis in the United States or in such other jurisdictions as may be agreed to by the Corporation and the Underwriters;
(ii) the Underwriters acknowledges that none of the Units have been or will be registered under the U.S. Securities Act or any state securities laws and may not be offered or sold in the United States except pursuant to the exemption from the registration requirements of the U.S. Securities Act provided by Rule 506 of Regulation D thereunder. Accordingly, the Underwriters agree, on their own behalf and on behalf of the U.S. Placement Agent(s), for the benefit of the Corporation, to comply with the selling restrictions imposed by the laws of the United States and described in Schedule “B” hereto, which is incorporated by reference in this Agreement. The Underwriters also make the representations, warranties and covenants attributable to them as set forth in Schedule “B” hereto;
(iii) notwithstanding the foregoing provisions of this Section 5, an Underwriter will not be liable to the Corporation under this Section 5 with respect to a default under this Section 5 by another Underwriter;
(iv) at least one of the Underwriters is duly registered in the appropriate category of dealer under the Applicable Securities Laws in each of the Qualifying Provinces;
(v) it is acquiring the Units and/or the Compensation Options as principal for its own account and not for the benefit of any other person and it is an “accredited investor” as such term is defined in National Instrument 45-106;
(vi) it and its representatives have not engaged in or authorized, and will not engage in or authorize, any form of general solicitation or general advertising in connection with or in respect of the Offering in any newspaper, magazine, printed media of a general and regular paid circulation or any similar medium; and
(vii) it has not and will not use, authorize use of, refer to, solicit offers to purchase or participate sell the Units so as to require the filing of a prospectus or offering memorandum with respect thereto or the provision of a contractual right of action (as defined in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent of the Company.
(2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to OSC Rule 173(a14-501) under the 1933 Act to any prospective purchaser of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member statejurisdiction.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
Representations, Warranties and Covenants of the Underwriters. (a1) Each of the UnderwritersUnderwriter hereby severally, severally and not jointly, representsnor jointly and severally, represents and warrants and covenants to the Company and the Guarantors Corporation that:
(1a) Such Underwriter has not it is, and will not useremain so, authorize use of, refer to, or participate in until the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent completion of the CompanyOffering, appropriately registered under Applicable Securities Laws so as to permit it to lawfully fulfill its obligations hereunder; and
(b) it has good and sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein.
(2) Such Each of the Underwriters hereby covenants and agrees with the Corporation to the following:
(a) any offers or sales of the Offered Shares in the United States will be conducted through the Underwriters, or one or more affiliates of the Underwriters (or Selling Firms), duly registered in compliance with Applicable Securities Law and the requirements of FINRA, as applicable; and such Underwriter will not enter into a contract of comply with Applicable Securities Laws in connection with the offer and sale with any prospective purchaser and distribution of the Securities until Offered Shares;
(b) such Underwriter shall not, directly or indirectly, solicit offers to purchase or sell the Disclosure Package has been conveyed Offered Shares or deliver any Offering Document so as to require registration of the Offered Shares or filing of a prospectus or registration statement with respect to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) Offered Shares under the 1933 Act laws of any jurisdiction other than the Offering Jurisdictions;
(c) such Underwriter, together with the other Underwriters will use its commercially reasonable efforts to any prospective purchaser complete the distribution of the Securities Offered Shares as promptly as possible after the Closing Time, but in any event no later than seven Business Days following the date of exercise of the entire Over-Allotment Option, if exercised; and
(d) no Underwriter shall be liable to the extent required Corporation under applicable lawthis section with respect to a default by any of the other Underwriters.
(3) This Underwriting The Corporation agrees that the Underwriters are acting severally and not jointly (or jointly and severally) in performing their respective obligations under this Agreement has been duly authorizedand that no Underwriter shall be liable for any act, executed and delivered omission or conduct by or on behalf of such any other Underwriter.
(4) The information furnished by or on behalf of such No Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus that is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, non-resident for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters ITA will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliancerender any services under this Agreement in Canada.
Appears in 1 contract
Representations, Warranties and Covenants of the Underwriters. 1.1 Each Underwriter hereby severally, and not jointly, nor jointly and severally, represents and warrants to the Company that:
(a) Each it is, and will remain so, until the completion of the UnderwritersOffering, appropriately registered under Applicable Securities Laws so as to permit it to lawfully fulfill its obligations hereunder, and it has complied with its obligations under Applicable Securities Laws;
(b) it has all requisite power and authority to enter into, deliver and carry out its obligations under this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein; and
(c) no finder's fee or compensation will be paid to any Purchaser or related party for the Offering.
1.2 In addition to the covenants set out in Article 4, the Underwriters hereby covenant and agree with the Company to the following:
(a) the Underwriters will comply with Applicable Securities Laws in connection with the offer and sale and Distribution of the Offered Securities;
(b) the Underwriters will use their commercially reasonable efforts to complete the Distribution of the Offered Securities as promptly as possible after the Closing Time; and
(c) no Underwriter shall be liable to the Company under this section with respect to a default by any other Underwriter.
1.3 The Company agrees that the Underwriters are acting severally and not jointly (or jointly and severally) in performing their respective obligations under this Agreement and that no Underwriter shall be liable for any act, omission or conduct by any other Underwriter or another Underwriter's duly registered broker-dealer Affiliate in the United States or any Selling Firm.
1.4 Each Underwriter, severally and not jointly, represents, warrants and covenants to with the Company and the Guarantors that:
(1) Such Underwriter has not and will not use, authorize use of, refer to, or participate to take any action that would result in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in Company being required to file with the form of Exhibit A hereto, without the consent of the Company.
(2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice SEC pursuant to Rule 173(a433-(d) under the 1933 Securities Act to any prospective purchaser of an "issuer free writing prospectus" (as defined in Rule 433 under the Securities to the extent required under applicable law.
(3Act) This Underwriting Agreement has been duly authorized, executed and delivered prepared by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or otherwise would not be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securities, directly or indirectly, or distribute the Disclosure Package or the Prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best knowledge and belief of such Underwriter, result in compliance with the applicable laws and regulations thereof and which will not impose any obligations on the Company, except as set forth in this Underwriting Agreement. In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication filed by the Company of a prospectus pursuant to Article 3 thereunder but for the action of the Prospectus Directive. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member stateUnderwriter.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
Samples: Underwriting Agreement (Cybin Inc.)
Representations, Warranties and Covenants of the Underwriters. (a) Each of the Underwriters, severally and not jointly, represents, warrants and covenants to the Company and the Guarantors thatThe Underwriters shall:
(1) Such Underwriter has . not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus other than an Issuer Free Writing Prospectus, including a term sheet substantially in the form of Exhibit A hereto, without the consent of the Company.
(2) Such Underwriter will not enter into a contract of sale with any prospective purchaser of the Securities until the Disclosure Package has been conveyed to the prospective purchaser. Such Underwriter will deliver the Prospectus or a notice pursuant to Rule 173(a) under the 1933 Act to any prospective purchaser of the Securities to the extent required under applicable law.
(3) This Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of such Underwriter.
(4) The information furnished by or on behalf of such Underwriter in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectus is true, correct and complete in all material respects.
(5) Such Underwriter agrees that in connection with the offering and sale of the Securities it will comply with applicable law provided that such Underwriter shall have no liability under this Section 3(a)(5) to the extent that any noncompliance with applicable law may arise out of or be based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package or the Prospectus or any omission or alleged omission to state in the Registration Statement, the Disclosure Package or the Prospectus a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made except to the extent that such Registration Statement, the Disclosure Package or such Prospectus contains an untrue statement or alleged untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances under which they were made, for which such Underwriter would have liability under the indemnification provisions of the first sentence of Section 8(b) hereof or (ii) the failure of the Company or any Guarantor to comply with any provision of applicable law or this Underwriting Agreement.
(6) Such Underwriter agrees that it will not offer, sell or deliver any of the Securitiessolicit, directly or indirectly, offers to purchase or distribute sell the Disclosure Package Offered Shares so as to require registration thereof or filing of a prospectus, registration statement or other similar disclosure with respect thereto under the laws of any jurisdiction (other than the Qualifying Provinces) including, without limitation, the United States and various states of the United States. The Underwriters shall be entitled to assume that the Offered Shares are qualified for distribution in any Qualifying Province where a receipt or similar document for the Final Prospectus shall have been obtained from or any on behalf of the applicable Securities Commission following the filing of the Final Prospectus and that the Offered Shares may be offered for sale in the United States subject to and in accordance with Schedule “A” to this agreement;
2. offer the Offered Shares for sale in the Qualifying Provinces and in other offering material relating jurisdictions as permitted by Applicable Laws and subject to the Securitiesterms and conditions of this agreement, in or from any jurisdiction except under circumstances that willat an initial offering price not exceeding the Offering Price;
3. use their respective best efforts to complete, and to cause each other investment dealer and broker through which the best knowledge and belief of such Underwriter, result in compliance with Underwriters may sell the applicable laws and regulations thereof and which will not impose any obligations on Offered Shares ( the Company, except as set forth in this Underwriting Agreement. In relation “Selling Firms”) to each member state complete the distribution of the European Economic Area that has implemented the Prospectus Directive (as defined below) (each, a “relevant member state”), such Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “relevant implementation date”) it has not made and will not make an offer of any Securities to the public in that relevant member state prior to the publication of a prospectus in relation to any Securities that has been approved by the competent authority in that relevant member state, or where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all Offered Shares in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer terms of any Securities to the public in that relevant member state:
(i) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those Securities which has been approved by the competent authority in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive and ending on the date which is 12 months this agreement as promptly as possible after the date filing of such publicationthe Final Prospectus and notify the Company when, in the opinion of the Underwriters, the distribution of the Offered Shares shall have ceased;
(ii) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by 4. promptly notify the Company of sales in each Qualifying Province and other jurisdictions permitted by Applicable Laws and this agreement and provide a breakdown of the total proceeds realized in each of the Qualifying Provinces in which a filing fee for a prospectus pursuant to Article 3 is based on the proceeds realized in the Qualifying Province from the sale of securities offered therein;
5. promptly notify each Securities Commission, where required, of the Prospectus Directivenumber of Offered Shares sold in the Qualifying Provinces; and
6. For the purpose of this Section 3(a)(5), the expression an “offer of any Securities to the public” in relation to any Securities to any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or subscribe for any Securities, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
(7) Such Underwriter represents and agrees that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Axx 0000 (“FSMA”)) received by it conduct its activities in connection with the issue or sale distribution of any Securities the Offered Shares in circumstances compliance with Applicable Laws and in compliance of the laws of all other jurisdictions in which section 21(1) Offered Shares are offered by the Underwriters. The representations, warranties and covenants of the FSMA does not apply Underwriters set out in Schedule “A” to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done this agreement are hereby incorporated herein by it in relation to any Securities in, from or otherwise involving the United Kingdomreference.
(b) The Underwriters acknowledge that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Underwriters pursuant to Section 9 hereof, counsel for the Company and the Guarantors and counsel for the Underwriters will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
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