Termination by Underwriters in Certain Events. (a) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company at or prior to the Closing Time if: (i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants; (ii) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn; (iii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE or any securities regulatory authority) (other than an inquiry, investigation, proceeding or order based upon the activities of the Underwriters), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of the Underwriters, operates to prevent, restrict or otherwise materially adversely affect the distribution or trading of the Offered Units, Shares or Warrants, or any other securities of the Company; (iv) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants; (v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect; (vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or (vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein. (b) If any of the Underwriters terminates this Agreement pursuant this Section 18, there shall be no further liability on the part of such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability under Sections 14, 15 and 16. (c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units Securities by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(a) Regulatory Out – there be (i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in any securities of the Offered Units, Shares Corporation or Warrants, prohibiting or to otherwise prohibit or restrict in any manner restricting the distribution or trading of any of the Offered Units, Shares or WarrantsSecurities is made, or proceedings are announced announced, commenced or commenced threatened for the making of any such order order, by any securities regulatory authority Securities Commission or similar regulatory authority, the TSX, other stock exchange or judicial authority or the CSEother competent authority, which order and has not been rescinded, revoked or withdrawn;
; or (iiiii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) in relation to the Corporation or any of the directors or officers of the Corporation is commencedannounced, announced commenced or threatened by any Securities Commission or similar regulatory authority, the TSX, other stock exchange or any other competent authority or any order is made or has been issued under or pursuant to any federalstatute of Canada or of any province of Canada or of any other jurisdiction, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE or any securities other Applicable Law or regulatory authority) authority (other than an inquiry, investigation, proceeding unless based solely on the activities or order based upon the alleged activities of the Underwriters), or there is a change in any law, rule regulation or regulation, policy or the interpretation or administration thereof, if, in the sole opinion of the Underwriters or any one of them, acting reasonably, the change, announcement, commencement or threatening thereof materially adversely affects the Corporation or materially prevents or restricts the trading in, or materially adversely impacts the distribution of, the Offered Securities;
(b) Material Change Out - there should occur any (i) material change (actual, contemplated or threatened) in or affecting the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Corporation, change of a material fact, or any development that could result in a material change or change of a material fact which, in the reasonable sole opinion of the Underwriters, operates or any one of them, acting reasonably, could reasonably be expected to prevent, restrict have a Material Adverse Effect on the Corporation or otherwise materially adversely affect could reasonably be expected to have a significant effect on the distribution market price or trading value of the Common Shares and/or Warrants or could reasonably be expected to result in purchasers of Offered Units, Shares Securities exercising their rights under applicable Securities Laws to withdraw from or Warrantsrescind their purchase thereof or sxx for damages in respect thereof; or (ii) the Underwriters, or any other securities one of them, shall become aware of any material information with respect to the Corporation which had not been publicly disclosed and which in the sole opinion of the CompanyUnderwriters or any one of them, acting reasonably, could be expected to have a Material Adverse Effect on the market price or value of the Common Shares and/or Warrants;
(ivc) Disaster Out - there should develop, occur or come into effect or existence any event, action, state, or condition or occurrence of any action, law or regulation, inquiry, including, nature (including without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest accident or major financial, political or economic occurrence of national or international consequence, consequence or a new or change in any law or regulation or any action, government, law, regulation, inquiry or other occurrence escalation in the severity of any nature, the COVID-19 pandemic) which, in the reasonable opinion of the UnderwritersLead Underwriter, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States U.S. or the business, operations or affairs of the Company Corporation or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonablySecurities; or
(viid) each of Breach Out - the Underwriters and or any one of them, acting reasonably, determines that the Company agree Corporation shall be in writing to terminate breach of, default under or non-compliance with any material representation, warranty, covenant or term, or any condition of this Agreement as provided for hereinAgreement.
(b2) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 Section 14 and 16Section 15.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other Underwriters.
(4) Notwithstanding the foregoing and for the avoidance of doubt, this Agreement may be terminated at any time at or prior to the Closing Time upon the mutual written agreement of the Corporation and Stifel GMP if the parties hereto decide not to proceed with the Offering.
Appears in 1 contract
Termination by Underwriters in Certain Events. (a) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company at or prior to the Closing Time if:
(i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Final Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant material adverse change or effect on the business or affairs of the Company and the Subsidiaries (taken as a whole) or on the market price or value of the Common Shares or Offered Units, Shares or Warrants;
(ii) an any order shall have been made or threatened to cease or suspend trading in any securities of the Company or prohibiting or restricting the distribution of any securities of the Company, including the, Offered Units, Shares or Shares, Warrants, Warrant Shares, Compensation Options or to otherwise prohibit or restrict in any manner Compensation Shares issued upon the distribution or trading exercise of the Offered UnitsCompensation Options, Shares or Warrantsis made, or proceedings are announced announced, commenced or commenced threatened for the making of any such order order, by any securities regulatory authority commission or similar regulatory authority, the CSE or judicial authority or the CSEany other competent authority, and which order has not been rescinded, revoked or withdrawn;
(iii) (A) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including including, without limitation limitation, the CSE or any securities regulatory authority) authority (other than an except for any inquiry, investigationaction, proceeding suit, proceeding, investigation or order based upon the activities of the UnderwritersUnderwriters and not upon activities of the Company) or any law or regulation is enacted or changed which in the sole opinion of the Underwriters (or any of them), acting reasonably, operates to prevent or materially restrict the trading of the Common Shares and Warrants or any other securities of the Company or materially and adversely affects or might be expected to materially and adversely affect the market price or value of the Offered Units or Common Shares; or (B) if there is a should develop, occur or come into effect or existence any event, action, state, condition (including without limitation, terrorism or accident) or major occurrence of national or international consequence or any new or change in any law, rule law or regulation, or the interpretation or administration thereof, which, regulation which in the reasonable sole opinion of the Underwriters, operates acting reasonably, seriously adversely affects, or involves, or would reasonably be expected to preventseriously adversely affect, restrict or otherwise materially adversely affect involve, the distribution financial markets generally or trading the business, operations or affairs of the Offered Units, Shares Company and its Subsidiaries taken as a whole or Warrants, the market price or any other value of the securities of the Company;
(iv) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest protest, or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States U.S. or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(viivi) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein.
(b) If any of the Underwriters terminates this Agreement pursuant this Section 18, there shall be no further liability on the part of such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability under Sections 14, 15 and 16.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units Shares by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(ia) there is a There shall occur or come into effect any material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment theretobusiness, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the board of directors or executive management of the CompanyCorporation, including the departure of the CompanyCorporation’s CEO or CFO (or persons in equivalent positionsposition)) ), financial condition, capital or control of the Company Corporation and the Subsidiaries (Subsidiaries, taken as a whole), or any change in any material fact or a new material fact, or there should be discovered any previously undisclosed fact which, in each case, that in the reasonable opinion of such Underwriter , has or would could reasonably be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, have a significant adverse effect on the market price or value or marketability of the Offered Units, Shares or Warrantsand/or Common Shares;
(iib) an An order shall have been made or threatened to cease or suspend trading in the Offered Units, Common Shares or Warrantsany other securities of the Corporation, or to otherwise prohibit or restrict in any manner the distribution or trading of the Common Shares, Offered Units, Shares or Warrantsany other securities of the Corporation, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSETSXV, which order has not been rescinded, revoked or withdrawn;
(iiic) any There is an inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any an order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation limitation, the CSE TSXV or any securities regulatory authority) , in relation to the Corporation or any one of its officers or directors (other than an except for any inquiry, investigationaction, proceeding suit, proceeding, investigation or order based upon the activities of the UnderwritersUnderwriters and not upon activities of the Corporation), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, which in the reasonable opinion of the Underwriterssuch Underwriter , acting reasonably, operates to prevent, prevent or materially restrict or otherwise materially adversely affect the distribution or trading of the Offered UnitsShares or, which in the reasonable opinion of such Underwriter, materially and adversely affects or would be reasonably expected to materially and adversely affect the market price or value of the Common Shares or Warrants, the distribution or any other securities trading of the CompanyOffered Shares;
(ivd) there There should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material significant escalation in the severity of the COVID-19 Outbreakpandemic after November 8, 2020), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriterssuch Underwriter , materially seriously adversely affects or involves, or may materially seriously adversely affect or involve, the financial markets in Canada or the United States U.S. or the business, operations or affairs of the Company Corporation or the Subsidiaries or the marketability of the Offered Units, Shares or Warrantsthe Common Shares;
(ve) the Company If such Underwriter is not satisfied in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwritersits sole discretion, acting reasonably, with its due diligence review and investigations in respect of the Corporation; or
(viif) each Any condition shall remain outstanding and uncompleted in any material respects at any time after the time which is it required to be completed or waived, or the Corporation is in material breach of any representation, warranty or covenant contained in the this Agreement, including, for greater certainty, the covenant of the Underwriters and Corporation to make all necessary filings with the Company agree in writing Securities Regulators, prior to terminate this Agreement or concurrently with the filing of the Preliminary Prospectus such that it becomes eligible to use the short form prospectus distribution system as provided for hereinunder NP 11-202 and NI 44-101 in the Qualifying Jurisdictions.
(b2) If this Agreement is duly terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 Section 13 and 16Section 15.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units Securities by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(a) Regulatory Out – (i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in any securities of the Offered Units, Shares Corporation or Warrants, prohibiting or to otherwise prohibit or restrict restricting in any manner the distribution or trading of the Offered Units, Units or the Common Shares is made or Warrantsthreatened, or proceedings are announced announced, commenced or commenced threatened for the making of any such order order, by any securities regulatory authority commission or similar regulatory authority, the Exchange, other stock exchange or judicial authority or the CSEother competent authority, which order and has not been rescinded, revoked or withdrawn;
; or (iiiii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) in relation to the Corporation or any of the directors or officers of the Corporation is commencedannounced, announced commenced or threatened by any securities commission or similar regulatory authority, the Exchange, or any other competent authority, or any order is made or has been issued under or pursuant to any federalapplicable statute of Canada or of any province of Canada or of any other jurisdiction, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE or any securities other Applicable Laws or regulatory authority) authority (other than an inquiry, investigation, proceeding unless based on the activities or order based upon the alleged activities of the Underwriters), if, in the reasonable opinion of the Underwriters or any one of them, acting reasonably, the change, announcement, commencement or threatening thereof would be reasonably expected to materially and adversely affect the market price or value of the Common Shares or the distribution or trading of the Units;
(b) Material Change Out - there is should occur or come into effect any material change in the Business, affairs (including any change to executive management of the Corporation, including the departure of the Company the Corporation’s CEO or CFO (or persons in equivalent position), financial condition, prospects, capital or control of the Corporation and the Subsidiaries, taken as a whole, or any change in any law, rule or regulationmaterial fact, or the interpretation or administration thereofany new material fact, which, in each case, in the reasonable opinion of the Underwriters, operates or any one of them, has or could reasonably be expected to prevent, restrict have a significant adverse effect on the market price or otherwise materially adversely affect the distribution value or trading marketability of the Offered Units, Shares Units or Warrants, or any other securities of the CompanyCommon Shares;
(ivc) Disaster Out - there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreakpandemic from the date hereof), natural disaster, public protest protest, or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or any other occurrence of any nature, which, in the reasonable opinion of the UnderwritersUnderwriters (or any one of them), materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States U.S. or the businessBusiness, operations or affairs of the Company Corporation and the Subsidiaries taken as a whole, or the marketability of the Offered Units, Shares or WarrantsSecurities;
(vd) Breach Out - the Company is in breach of any material term, condition or covenant of this Agreement Underwriters or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf one of the Underwritersthem, acting reasonably, determines that the Corporation shall be in breach of, default under or non-compliance with any material representation, warranty, covenant, term, or condition of this Agreement; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein.
(b) If any of the Underwriters terminates this Agreement pursuant this Section 18, there shall be no further liability on the part of such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability under Sections 14, 15 and 16.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Termination by Underwriters in Certain Events. (a1) Each Underwriter of the Underwriters shall also be entitled have the right to terminate its obligation to purchase the Offered Units obligations hereunder, without any liability on such Underwriter’s part, by written notice to the Corporation and CIBC in the event that effect given to after the Company date hereof and at or prior to the Closing Time ifTime:
(ia) there is a should occur any material change or a any change in a any material fact or a new material fact shall arise, or there should be discovered any Underwriter becomes aware of any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment theretoas contemplated by Section 8 hereof, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole)which, in each case, that in the opinion of the Underwriter, acting reasonably, has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, have a significant adverse effect on the market price or value of the Offered Units, Shares or WarrantsShares;
(iib) an order shall have been made there should develop, occur, come into effect or threatened to cease be announced any occurrence of national or suspend trading international consequence or any event, action, state, condition or major financial occurrence of national or international consequence or any law or regulation which, in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading opinion of the Offered UnitsUnderwriter, Shares acting reasonably, seriously adversely affects or Warrants, involves or proceedings are announced will seriously adversely affect or commenced for involve the making of any such order by any securities regulatory authority or similar regulatory or judicial authority financial markets or the CSEbusiness, which order has not been rescinded, revoked operations or withdrawnaffairs the Corporation on a consolidated basis;
(iiic) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency agency, regulatory authority or other instrumentality (including including, without limitation limitation, the CSE TSX and the NYSE Amex or any securities regulatory authority) (other than an inquiry, investigation, proceeding or order based upon Securities Commission involving the activities of the Underwriters), Corporation or there is a change in any law, rule or regulation, or the interpretation or administration thereof, of law which, in each case in the reasonable opinion of the UnderwritersUnderwriter, operates to prevent, suspend or restrict the trading or otherwise materially adversely affect the distribution or trading of the Offered Units, Shares or Warrants, or any other securities of the CompanyShares;
(ivd) there should develop, occur trading generally shall have been suspended or come into effect materially limited on or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in by the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involveNew York Stock Exchange, the financial markets in Canada NYSE Amex, the Nasdaq Stock Market or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonablyStock Exchange; or
(viie) trading of any securities issued by the Corporation shall have been suspended on any exchange.
(2) The Corporation agrees that all terms and conditions of this Agreement shall be construed as conditions and complied with insofar as the same relate to acts to be performed or caused to be performed by the Corporation, and the Corporation will use its commercially reasonable efforts to cause all such conditions to be complied with. Any breach or failure by the Corporation to comply with any of such conditions shall entitle each of the Underwriters to terminate their respective obligations to purchase the Shares, by written notice to that effect given to the Corporation at or prior to the Closing Time. It is understood that each of the Underwriters may waive, in whole or in part, or extend the time for compliance with, any terms and the Company agree conditions without prejudice to its rights in respect of any other of such terms and conditions or any other or subsequent breach or non-compliance, provided that to be binding on an Underwriter any such waiver or extension must be in writing to terminate this Agreement as provided for hereinand signed by such Underwriter.
(b3) If The rights of termination contained in this Section 17 may be exercised by each Underwriter and are in addition to any other rights or remedies such Underwriter may have in respect of any default, act or failure to act or non-compliance by the Corporation in respect of any of the Underwriters terminates matters contemplated by this Agreement pursuant this Section 18or otherwise. In the event of any such termination, there shall be no further liability on the part of such Underwriter, Underwriter to the Corporation or on the part of the Company Corporation to such Underwriter except in respect of any liability under Sections 14, 15 and 16.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one an Underwriter under this Section 18 Sections 17 shall not be binding upon the on any other UnderwritersUnderwriter.
Appears in 1 contract
Termination by Underwriters in Certain Events. (a1) Each Underwriter The Underwriters shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(ia) there is a Due Diligence Out – the due diligence investigations performed by the Underwriters or their representatives reveal any material change information or a change in a material fact or new material fact shall arisefact, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to havewhich, in the sole opinion of Eight Capital, is materially adverse to the Underwriters (Corporation or any of them)its business, acting reasonably, a significant adverse effect on or materially adversely affects the market price or value of the Offered Units, Shares or Warrants;
(iib) an Regulatory Out – there be (i) any order shall have been made or threatened to cease or suspend trading in any securities of the Offered Units, Shares Corporation or Warrants, prohibiting or to otherwise prohibit or restrict in any manner restricting the distribution or trading of any of the Offered Units, Common Shares or Warrantsis made, or proceedings are announced announced, commenced or commenced threatened for the making of any such order order, by any securities regulatory authority commission or similar regulatory authority, the Exchange, other stock exchange or judicial authority or the CSEother competent authority, which order and has not been rescinded, revoked or withdrawn;
; or (iiiii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) in relation to the Corporation or any of the directors, officers or principal shareholders of the Corporation is announced, commenced or threatened by any securities commission or similar regulatory authority, the Exchange, or any other competent authority or any order has been issued under or pursuant to any statute of Canada or of any province of Canada or of any other jurisdiction, or any other applicable Law or regulatory authority (unless based solely on the activities or alleged activities of the Underwriters), or there is a change in law, regulation or policy or the interpretation or administration thereof, if, in the sole opinion of the Underwriters, acting reasonably, the change, announcement, commencement or threatening thereof materially adversely affects the Corporation or materially prevents or restricts the trading in, or materially adversely impacts the distribution of, the Common Shares;
(c) Material Adverse Change Out - there should occur any (i) material change in or affecting the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Corporation, change of a material fact, which, in the sole opinion of the Underwriters, acting reasonably, could reasonably be expected to have a significant adverse change or effect on the Corporation or could reasonably be expected to have a significant adverse effect on the market price or value of the Common Shares; or (ii) the Underwriters shall become aware of any material information with respect to the Corporation which had not been publicly disclosed and which in the sole opinion of the Underwriters, acting reasonably, could be expected to have a significant adverse effect on the market price or value of the Common Shares;
(d) Disaster Out – (i) there should develop, occur or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence, including any act of terrorism, war or like event, or any law, action, regulation or other occurrence of any nature whatsoever, which, in the sole opinion of the Underwriters, acting reasonably, seriously adversely affects or involves, or may seriously adversely affect or involve, the financial markets or the business, operations or affairs of the Corporation or its Subsidiaries taken as a whole or the market price or value of the securities of the Corporation; or (ii) any inquiry, action, suit, proceeding or investigation (whether formal or informal) is commenced, announced or threatened in relation to the Corporation or any one of the officers or directors of the Corporation or any of its principal shareholders where wrong-doing is alleged or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE Exchange or any securities regulatory authority) (other than an inquiry, investigation, proceeding or order based upon the activities a Securities Commission which involves a finding of the Underwriters), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of the Underwriters, operates to prevent, restrict or otherwise materially adversely affect the distribution or trading of the Offered Units, Shares or Warrants, or any other securities of the Companywrong- doing;
(iv) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein.
(b) If any of the Underwriters terminates this Agreement pursuant this Section 18, there shall be no further liability on the part of such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability under Sections 14, 15 and 16.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company at or prior to the Closing Time if:
(i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Final Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant material adverse change or effect on the business or affairs of the Company and the Subsidiaries (taken as a whole) or on the market price or value of the Common Shares or Offered Units, Shares or Warrants;
(ii) an any order shall have been made or threatened to cease or suspend trading in any securities of the Company or prohibiting or restricting the distribution of any securities of the Company, including the, Offered Units, Shares or Shares, Warrants, Warrant Shares, Compensation Options or to otherwise prohibit or restrict in any manner Compensation Shares issued upon the distribution or trading exercise of the Offered UnitsCompensation Options, Shares or Warrantsis made, or proceedings are announced announced, commenced or commenced threatened for the making of any such order order, by any securities regulatory authority commission or similar regulatory authority, the CSE or judicial authority or the CSEany other competent authority, and which order has not been rescinded, revoked or withdrawn;
(iii) (A) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including including, without limitation limitation, the CSE or any securities regulatory authority) authority (other than an except for any inquiry, investigationaction, proceeding suit, proceeding, investigation or order based upon the activities of the Underwriters), Underwriters and not upon activities of the Company) or there any law or regulation is a change in any law, rule enacted or regulation, or the interpretation or administration thereof, which, changed which in the reasonable sole opinion of the UnderwritersUnderwriters (or any of them), acting reasonably, operates to prevent, prevent or materially restrict or otherwise materially adversely affect the distribution or trading of the Offered Units, Common Shares or Warrants, and Warrants or any other securities of the Company;
Company or materially and adversely affects or might be expected to materially and adversely affect the market price or value of the Offered Units or Common Shares; or (ivB) if there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, (including without limitation, terrorism, terrorism or accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest ) or major financial, political or economic occurrence of national or international consequence, consequence or any action, government, law, regulation, inquiry new or other occurrence of change in any nature, which, law or regulation which in the reasonable sole opinion of the Underwriters, materially acting reasonably, seriously adversely affects affects, or involves, or may materially would reasonably be expected to seriously adversely affect affect, or involve, the financial markets in Canada or the United States generally or the business, operations or affairs of the Company and its Subsidiaries taken as a whole or the marketability market price or value of the Offered Units, Shares or Warrantssecurities of the Company;
(viv) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(viiv) each of the Underwriters Beacon and the Company agree in writing to terminate this Agreement as provided for herein.
(b) If any of the Underwriters terminates this Agreement pursuant this Section 18, there shall be no further liability on the part of such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability under Sections 14, 15 and 16.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events.
(a1) Each Underwriter (or any of them) shall also be entitled to terminate its obligation to purchase the Offered Units Shares by written notice to that effect given to the Company Corporation and to the other Underwriters at or prior to the Time of Closing Time if:
(ia) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in any securities of the Offered Units, Shares or WarrantsCorporation, or to otherwise prohibit prohibiting or restrict in any manner restricting the distribution or trading of the Offered Units, Common Shares or Warrantsis made, or proceedings are any proceeding is announced or commenced for the making of any such order order, by any securities regulatory authority authority, any stock exchange or similar regulatory or judicial authority or the CSEby any other competent authority, which order and has not been rescinded, revoked or withdrawn;
(iiib) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, threatened or announced or threatened or any order or ruling is made or issued under or pursuant to any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE statute of Canada or any securities regulatory authority) (other than an inquiryProvince, investigation, proceeding or order based upon the activities of the Underwriters)United States or any state thereof or by any official of any stock exchange or by any other regulatory authority having jurisdiction over a material portion of the business and affairs of the Corporation and its Material Subsidiaries (on a consolidated basis) or otherwise, or there is a any change in any of law, rule or regulation, or the interpretation interpretation, pronouncement or administration thereof, which, thereof or in respect thereof which in the reasonable opinion of the UnderwritersUnderwriter (or any of them), acting reasonably, may prevent or operates to prevent, prevent or restrict or otherwise materially adversely affect the distribution of, trading in, or trading marketability of the Offered Units, Common Shares or Warrants, or the trading in any other securities of the CompanyCorporation;
(ivc) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, acts of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions or any action, government, law, regulation, inquiry or other occurrence of any nature, nature which, in the reasonable opinion of the UnderwritersUnderwriters (or any of them), materially adversely affects or involves, or may materially adversely affect or involve, the Canadian financial markets in Canada or the United States generally or the business, operations or affairs of the Company Corporation and the Corporation or its Material Subsidiaries, taken as a whole, or the marketability market price or value of the Offered Units, Common Shares or Warrantsany other securities of the Corporation;
(vd) there shall occur any material change (actual, imminent or reasonably expected), or change in material fact which in the reasonable opinion of the Underwriters or any of them, acting reasonably, could be expected to have a material adverse effect on the market price or value of the Common Shares or any other securities of the Corporation, or the Underwriters shall become aware of any material information with respect to the Corporation which had not been publicly disclosed or disclosed in writing to the Underwriters at or prior to the date hereof and which in the sole opinion of the Underwriters or any of them, acting reasonably, could be expected to have a material adverse effect on the market price or value of the Common Shares or any other securities of the Corporation; or
(e) the Company Corporation is in breach of any material term, condition or covenant of this Agreement or any material representation or warranty given by the Company Corporation in this Agreement is or becomes false in any material respect;
and such breach is not cured within three (vi3) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf Business Days of written notice of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for hereinsame.
(b2) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 Section 13 and 16Section 15.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units Shares by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(ia) Material Change Out — there is a shall be any material change or a change in a material fact or new material fact shall arisefact, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole)Offering Documents, in each case, that has or would be expected to havecase which, in the sole reasonable opinion of the Underwriters (or any of them), acting reasonably, has or would be expected to have a significant adverse effect on the market price or value of the Offered UnitsCommon Shares, Shares or Warrantsany other securities of the Corporation;
(iib) an order shall have been made Disaster Out — there should develop, occur or threatened to cease come into effect or suspend trading existence any event, action, state, condition (including without limitation, terrorism or accident) or major financial occurrence of national or international consequence or a new or change in any law or regulation which in the Offered Units, Shares or Warrantssole opinion of the Underwriters, or to otherwise prohibit any one of them, seriously adversely affects or restrict in any manner involves or may seriously adversely affect or involve the distribution financial markets or trading the business, operations or affairs of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority Corporation and its Subsidiaries taken as a whole or the CSE, which order has not been rescinded, revoked market price or withdrawn;
value of the securities of the Corporation; (iiiii) any inquiry, action, suit, proceeding or investigation or other proceeding (whether formal or informal) is commenced, announced or threatened in relation to the Corporation or any one of the officers or directors of the Corporation or any of its principal shareholders where wrong-doing is alleged or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality instrumentality, including, without limitation, the TSX or securities commission which involves a finding of wrong-doing; or (including without limitation the CSE iii) any order, action or any securities regulatory authority) (other than an inquiry, investigation, proceeding which cease trades or order based upon the activities of the Underwriters), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of the Underwriters, otherwise operates to prevent, prevent or restrict or otherwise materially adversely affect the distribution or trading of the Offered Units, Common Shares or Warrants, or any other securities of the Company;Corporation is made or threatened by a securities regulatory authority; or
(ivc) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in Breach Out — the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company Corporation is in breach of any material term, condition or covenant of this Agreement or any material representation or warranty given by the Company Corporation in this Agreement becomes or is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for hereinfalse.
(b2) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 13 and 1615.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other Underwriters.
Appears in 1 contract
Termination by Underwriters in Certain Events. (1) If at any time prior to the Closing:
(a) Each Underwriter there shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company at or prior to the Closing Time if:
(i) there is a have occurred any material change or a change in a any material fact or new material fact shall arisefact, or there should shall be discovered any previously undisclosed material change or material fact in relation to the Corporation which was required to be disclosed in the Preliminary Prospectus, the Final Prospectus or the Prospectus (or any amendment thereto), or a Material Adverse Effect on otherwise that could in the business or affairs (including, for greater certainty, reasonable opinion of any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would Underwriter be expected to have, result in an adverse material change in relation to the sole opinion of the Underwriters (or any of them), acting reasonably, Corporation and have a significant adverse effect on the market price or value of the Offered Units, Shares or WarrantsCommon Shares;
(ii) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
(iiib) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened made or any order is made or issued under or pursuant to any federalstatute of Canada or any province thereof or any statute of the United States or any state thereof or any stock exchange in relation to the Corporation or any of its securities (except for any inquiry, provincial, state, municipal investigation or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE or any securities regulatory authority) (other than an inquiry, investigation, proceeding or order based upon the activities of any Underwriter and not upon activities of the UnderwritersCorporation), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of any Underwriter, acting reasonably, prevents or restricts trading in or the Underwriters, operates distribution of the Offered Securities or materially adversely affects or might reasonably be expected to prevent, restrict or otherwise materially adversely affect the distribution market price or trading value of the Offered Units, Shares or Warrants, or any other securities of the CompanySecurities;
(ivc) there should develop, occur or come into effect or existence any event, action, state, or condition or any actioncalamity, law or regulationemergency, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, consequence or any action, government, law, regulation, inquiry law or other occurrence of any nature, regulation which, in the reasonable opinion of Canaccord, on behalf of the Underwriters, acting reasonably, materially adversely affects or involves, or may will materially adversely affect or involve, the financial markets in Canada or (including the United States commodity markets) or the business, operations or affairs of the Company or the marketability of the Offered UnitsCorporation and its subsidiaries, Shares or Warrants;taken as a whole; or
(vd) the Company Corporation is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company Corporation in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time)false, on January 25Canaccord, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing shall be entitled to terminate this Agreement as provided for hereinand cancel its obligations to the Corporation by written notice to that effect given to the Corporation prior to the Closing.
(b2) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1818(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 13 and 1615.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Purchased Units by written notice to that effect given to the Company Fund or Hxxxx at or prior to the Time of Closing Time if:
(i) there is a shall be any material change in the affairs of the Fund, Sun Gro U.S., Sun Gro Canada or a change any of the Fund Subsidiaries (actual or as contemplated in a material fact or new material fact shall arisethe Prospectus), or there should be discovered any previously undisclosed material change or fact (other than a material fact related solely to any of the Underwriters) required to be disclosed in the Preliminary Prospectus or the Prospectus or there should occur a change (other than a change related solely to any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including Underwriters) in a material fact contained in the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole)Prospectus, in each case, that has or would be expected to havecase which, in the sole opinion of the Underwriters (or any of them)Underwriters, acting reasonably, has or may have a significant materially adverse effect on the market price or value of the Offered Purchased Units, Shares or Warrants;
(ii) an order shall have been made any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality or any third party (other than any such inquiry, action, suit, investigation or other proceeding or order relating solely to cease or suspend trading any of the Underwriters) which, in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading opinion of the Offered UnitsUnderwriter, Shares acting reasonably, operates or Warrantscould operate to prevent, suspend, hinder, delay, restrict or proceedings are announced or commenced for otherwise materially adversely affect the making of any such order transactions contemplated by any securities regulatory authority or similar regulatory or judicial authority the Prospectus or the CSE, which order has not been rescinded, revoked Transaction Agreements or withdrawnany of them;
(iii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including including, without limitation limitation, the CSE TSE or any securities regulatory authority) authority (other than an any such inquiry, investigationaction, suit, investigation or other proceeding or order based upon the activities relating solely to any of the Underwriters)) or any law or regulation is enacted or changed which, in the opinion of the Underwriter, acting reasonably, operates to prevent, suspend or there restrict the distribution or trading of the Purchased Units or materially and adversely affects or will materially and adversely affect the market price or value of the Purchased Units;
(iv) the state of financial markets in Canada is a change in any law, rule or regulation, or the interpretation or administration thereof, whichsuch that, in the reasonable opinion of the Underwriters, operates to prevent, restrict or otherwise materially adversely affect the distribution or trading of the Offered Units, Shares or Warrants, or any other securities of the CompanyPurchased Units cannot be marketed profitably;
(ivv) if there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic financial occurrence of national or international consequence, consequence or any action, government, law, regulation, inquiry law or other occurrence of any nature, regulation which, in the reasonable opinion of the UnderwritersUnderwriter, acting reasonably, materially adversely affects or involvesaffects, or may materially adversely affect or involveaffect, the financial markets in Canada or the United States or States, the business, operations or affairs of the Company Fund and the Fund Subsidiaries (actual or as contemplated in the Prospectus) taken as a whole or the marketability of the Offered Purchased Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;; or
(vi) a receipt for there is announced any change or proposed change in the Prospectus has not been issued by Income Tax Act or any other tax laws of Canada or any other jurisdiction and such change could, in the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf opinion of the UnderwritersUnderwriter, acting reasonably; or
(vii) each , be expected to have a significant adverse effect on the market price, value or marketability of the Underwriters and the Company agree in writing to terminate this Agreement as provided for hereinPurchased Units.
(b) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this Section 18to Subsection 19(a), there shall be no further liability on the part of such Underwriter or of the Fund or Hxxxx to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 1415, 15 16, and 1617.
(c) The right of the Underwriters or any of them to terminate their obligations respective obligation under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Fund or Hxxxx in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 19 shall not be binding upon the other Underwriters.
Appears in 1 contract
Termination by Underwriters in Certain Events. (a) 14.1 Each Underwriter shall also will be entitled to terminate its obligation to purchase the Offered Units Shares, without liability on the Underwriter’s part, by written notice to that effect given to the Company Issuer and the Lead Underwriters at or prior to the Closing Time ifTime:
(ia) there is a material change or a change in a material fact or new material fact shall ariseif, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
(iii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to any relevant statute or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including or any third party, including, without limitation limitation, the CSE TSX, NASDAQ, or any securities regulatory authority) authority (other than an any such inquiry, investigationaction, suit, investigation or other proceeding or order based upon the activities relating solely to any of the Underwriters), ) or there is a any change in any of law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of that Underwriter, acting in good faith, (i) operates to prevent or materially restrict the Underwriterstrading in, or materially and adversely impacts the distribution or the marketability of the Offered Shares or materially and adversely affects or will materially and adversely affect the market price or value of the Offered Shares, as applicable; or (ii) operates to prevent, suspend, hinder, delay, restrict or otherwise materially adversely affect the distribution transaction contemplated by the Final Prospectuses;
(b) there occurs any material change (actual, imminent or trading reasonably expected) in the Business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the Issuer or its subsidiaries, taken as a whole, howsoever caused, or there should be discovered any previously undisclosed material fact (other than a material fact related solely to any of the Underwriters) or there should occur a change (other than a change related solely to any of the Underwriters) in a material fact contained in the Final Prospectuses, in each case which, in the opinion of that Underwriter, could reasonably be expected to have a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants, or any other securities of the CompanyShares;
(ivc) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic financial occurrence of national or international consequence, including any act of terrorism, war or like event, or any governmental action, government, law, regulation, inquiry or other occurrence of any nature, nature which, in the reasonable opinion of the Underwriterssuch Underwriter, materially adversely affects or involves, or may reasonably be expected to materially and adversely affect or involve, the financial markets in Canada or the United States or the businessBusiness, operations or affairs of the Company Issuer and its subsidiaries, taken as a whole, or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonablyShares; or
(viid) each there is announced any change or proposed change in the Tax Act or U.S. Tax Code or any other tax laws of Canada or the United States or any other jurisdiction and such change would, in the opinion of the Underwriters Underwriter, acting reasonably, be expected to have a significant adverse effect on the market price, value or marketability of the Offered Shares.
14.2 All terms and the Company agree conditions in writing to terminate this Agreement will be construed as provided for herein.
(b) If conditions, and any breach of or failure to comply with any such terms or conditions which in the reasonable opinion of any of the Underwriters terminates materially and adversely affects the sale or distribution by it of the Offered Shares will entitle each Underwriter at any time prior to the Closing Time to terminate its obligations under this Agreement forthwith by written notice to that effect given to the Issuer. It is understood that the Underwriters or any of them may waive, in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to the rights of the Underwriters or any of them in respect of any such terms and conditions or any other or subsequent breach or non-compliance, provided that to be binding on an Underwriter any such waiver or extension must be in writing and signed by such Underwriter.
14.3 In the event of any termination of the Underwriters’ obligations under this Agreement by one of the Underwriters in accordance with the terms of this Agreement, the other Underwriters will be deemed contemporaneously to have terminated their obligations under this Agreement unless the other Underwriters or any of them will, within 24 hours after notice of termination is given, notify the Issuer that they are assuming the obligations of the Underwriter terminating its obligations. Any termination by any of the Underwriters pursuant to the provisions of this Agreement will be effected by notice delivered to the Issuer. The rights of termination contained in this Section 1814 are in addition to any other rights or remedies the Underwriters may have in respect of any default, misrepresentation, act or failure to act of the Issuer in respect of any matters contemplated by this Agreement. In the event of any such termination, there shall will be no further liability on the part of such Underwriter, the Issuer or on the part of the Company to such Underwriter Underwriters except in respect of for any liability under Sections 14, provided for in Section 15 and 16Section 16.2.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Student Transportation Inc.)
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units Securities by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(a) Regulatory Out – (i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in any securities of the Offered Units, Shares Corporation or Warrants, prohibiting or to otherwise prohibit or restrict in any manner restricting the distribution or trading of any of the Offered Units, Common Shares or Warrantsis made, or proceedings are announced announced, commenced or commenced threatened for the making of any such order order, by any securities regulatory authority commission or similar regulatory authority, the Exchange, other stock exchange or judicial authority or the CSEother competent authority, which order and has not been rescinded, revoked or withdrawn;
; or (iiiii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) in relation to the Corporation or any of the directors or officers of the Corporation is commencedannounced, announced commenced or threatened by any securities commission or similar regulatory authority, the Exchange, or any other competent authority or any order is made or has been issued under or pursuant to any federalstatute of Canada or of any province of Canada or 52 of any other jurisdiction, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE or any securities other Applicable Law or regulatory authority) authority (other than an inquiry, investigation, proceeding unless based solely on the activities or order based upon the alleged activities of the Underwriters), or there is a change in any law, rule regulation or regulation, policy or the interpretation or administration thereof, if, in the sole opinion of the Underwriters or any one of them, acting reasonably, the change, announcement, commencement or threatening thereof materially adversely affects the Corporation or materially prevents or restricts the trading in, or materially adversely impacts the distribution of, the Common Shares;
(b) Material Change Out - there should occur any (i) material change (actual, contemplated or threatened) in or affecting the Business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Corporation (including the departure of the Company's CEO or CFO (or Persons in equivalent position)), change of a material fact, or any development that could result in a material change or change of a material fact which, in the reasonable sole opinion of the Underwriters, operates or any one of them, acting reasonably, could reasonably be expected to prevent, restrict have a Material Adverse Effect on the Corporation or otherwise materially adversely affect could reasonably be expected to have a significant effect on the distribution market price or trading value of the Offered Units, Common Shares or Warrantscould reasonably be expected to result in Purchasers of Offered Securities exercising their rights under Applicable Securities Laws to withdraw from or rescind their purchase thereof or xxx for damages in respect thereof; or (ii) the Underwriters, or any other securities one of them, shall become aware of any material information with respect to the Corporation which had not been publicly disclosed and which in the sole opinion of the CompanyUnderwriters or any one of them, acting reasonably, could be expected to have a Material Adverse Effect on the market price or value of the Common Shares;
(ivc) Disaster Out - there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreakoutbreak), natural disaster, public protest protest, or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or any other occurrence of any nature, which, in the reasonable opinion of the UnderwritersUnderwriters (or any one of them), materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States U.S. or the businessBusiness, operations or affairs of the Company Corporation and the Subsidiaries taken as a whole, or the marketability of the Offered Units, Shares or WarrantsSecurities;
(vd) Breach Out - the Company is Underwriters or any one of them, acting reasonably, determines that the Corporation shall be in breach of of, default under or non-compliance with any material representation, warranty, covenant, term, or condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;Agreement; or
(vie) a receipt for Outside Date - the Prospectus Corporation has not been issued obtained a Final Receipt qualifying the Offered Securities and the Broker Warrants for distribution in the Qualifying Jurisdictions by the OSC by 5:00 p.m. (Toronto time), on January 25February 8, 2021, or such other date as may be agreed to between the Company Corporation and Beacon the Lead Underwriter, on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein.
(b2) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 Section 13 and 16Section 15.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other UnderwritersUnderwriter.
(4) Notwithstanding the foregoing and for the avoidance of doubt, this Agreement may be terminated at any time at or prior to the Closing Time upon the mutual written agreement of the Corporation and Canaccord if the parties hereto decide not to proceed with the Offering.
Appears in 1 contract
Samples: Underwriting Agreement (Cybin Inc.)
Termination by Underwriters in Certain Events. (a) 14.1 Each Underwriter shall also will be entitled to terminate its obligation to purchase the Offered Units Debentures, without liability on the Underwriter’s part, by written notice to that effect given to the Company Issuer and Scotia at or prior to the Closing Time ifTime:
(ia) there is a material change or a change in a material fact or new material fact shall ariseif, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
(iii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to any relevant statute or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including or any third party, including, without limitation limitation, the CSE TSX or any securities regulatory authority) authority (other than an any such inquiry, investigationaction, suit, investigation or other proceeding or order based upon the activities relating solely to any of the Underwriters), ) or there is a any change in any of law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of that Underwriter, acting in good faith, (i) operates to prevent or materially restrict the Underwriterstrading in, or materially and adversely impacts the distribution or the marketability of the Debentures or the Underlying Shares, or materially and adversely affects or will materially and adversely affect the market price or value of the Debentures or the Underlying Shares, as applicable; or (ii) operates to prevent, suspend, hinder, delay, restrict or otherwise materially adversely affect the distribution or trading of transaction contemplated by the Offered Units, Shares or Warrants, or any other securities of the CompanyFinal Prospectus;
(ivb) there occurs any material change (actual, imminent or reasonably expected) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the Issuer or its subsidiaries, taken as a whole, howsoever caused, or there should be discovered any previously undisclosed material fact (other than a material fact related solely to any of the Underwriters) or there should occur a change (other than a change related solely to any of the Underwriters) in a material fact contained in the Final Prospectus, in each case which, in the opinion of that Underwriter, could reasonably be expected to have a significant adverse effect on the market price or value of the Debentures or the Underlying Shares;
(c) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic financial occurrence of national or international consequence, including any act of terrorism, war or like event, or any governmental action, government, law, regulation, inquiry or other occurrence of any nature, nature which, in the reasonable opinion of the Underwriterssuch Underwriter, materially adversely affects or involves, or may reasonably be expected to materially and adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company Issuer and its subsidiaries, taken as a whole, or the marketability of the Offered Units, Shares Debentures or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonablyUnderlying Shares; or
(viid) each there is announced any change or proposed change in the Tax Act or U.S. Tax Code or any other tax laws of Canada or the United States or any other jurisdiction and such change would, in the opinion of the Underwriters Underwriter, acting reasonably, be expected to have a significant adverse effect on the market price, value or marketability of the Debentures or the Underlying Shares.
14.2 All terms and the Company agree conditions in writing to terminate this Agreement will be construed as provided for herein.
(b) If conditions, and any breach of or failure to comply with any such terms or conditions which in the reasonable opinion of any of the Underwriters terminates materially and adversely affects the sale or distribution by it of the Debentures will entitle each Underwriter at any time prior to the Closing Time to terminate its obligations under this Agreement forthwith by written notice to that effect given to the Issuer. It is understood that the Underwriters or any of them may waive, in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to the rights of the Underwriters or any of them in respect of any such terms and conditions or any other or subsequent breach or non-compliance, provided that to be binding on an Underwriter any such waiver or extension must be in writing and signed by such Underwriter.
14.3 In the event of any termination of the Underwriters’ obligations under this Agreement by one of the Underwriters in accordance with the terms of this Agreement, the other Underwriters will be deemed contemporaneously to have terminated their obligations under this Agreement unless the other Underwriters or any of them will, within 24 hours after notice of termination is given, notify the Issuer that they are assuming the obligations of the Underwriter terminating its obligations. Any termination by any of the Underwriters pursuant to the provisions of this Agreement will be effected by notice delivered to the Issuer. The rights of termination contained in this Section 1814 are in addition to any other rights or remedies the Underwriters may have in respect of any default, misrepresentation, act or failure to act of the Issuer in respect of any matters contemplated by this Agreement. In the event of any such termination, there shall will be no further liability on the part of such Underwriter, the Issuer or on the part of the Company to such Underwriter Underwriters except in respect of for any liability under Sections 14, provided for in Section 15 and 16Section 16.2.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Student Transportation Inc.)
Termination by Underwriters in Certain Events. (a) 14.1 Each Underwriter shall also will be entitled to terminate its obligation to purchase the Offered Units Shares, without liability on the Underwriter’s part, by written notice to that effect given to the Company Issuer and BMO at or prior to the Closing Time ifTime:
(ia) there is a material change or a change in a material fact or new material fact shall ariseif, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
(iii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to any relevant statute or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including or any third party, including, without limitation limitation, the CSE TSX, NASDAQ or any securities regulatory authority) authority (other than an any such inquiry, investigationaction, suit, investigation or other proceeding or order based upon the activities relating solely to any of the Underwriters), ) or there is a any change in any of law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of that Underwriter, acting in good faith, (i) operates to prevent or materially restrict the Underwriterstrading in, or materially and adversely impacts the distribution or the marketability of the Offered Shares or materially and adversely affects or will materially and adversely affect the market price or value of the Offered Shares, as applicable; or (ii) operates to prevent, suspend, hinder, delay, restrict or otherwise materially adversely affect the distribution transaction contemplated by the Final Prospectuses;
(b) there occurs any material change (actual, imminent or trading reasonably expected) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the Issuer or its subsidiaries, taken as a whole, howsoever caused, or there should be discovered any previously undisclosed material fact (other than a material fact related solely to any of the Underwriters) or there should occur a change (other than a change related solely to any of the Underwriters) in a material fact contained in the Final Prospectuses, in each case which, in the opinion of that Underwriter, could reasonably be expected to have a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants, or any other securities of the CompanyShares;
(ivc) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic financial occurrence of national or international consequence, including any act of terrorism, war or like event, or any governmental action, government, law, regulation, inquiry or other occurrence of any nature, nature which, in the reasonable opinion of the Underwriterssuch Underwriter, materially adversely affects or involves, or may reasonably be expected to materially and adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company Issuer and its subsidiaries, taken as a whole, or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonablyShares; or
(viid) each there is announced any change or proposed change in the Tax Act or U.S. Tax Code or any other tax laws of Canada or the United States or any other jurisdiction and such change would, in the opinion of the Underwriters Underwriter, acting reasonably, be expected to have a significant adverse effect on the market price, value or marketability of the Offered Shares.
14.2 All terms and the Company agree conditions in writing to terminate this Agreement will be construed as provided for herein.
(b) If conditions, and any breach of or failure to comply with any such terms or conditions which in the reasonable opinion of any of the Underwriters terminates materially and adversely affects the sale or distribution by it of the Offered Shares will entitle each Underwriter at any time prior to the Closing Time to terminate its obligations under this Agreement forthwith by written notice to that effect given to the Issuer. It is understood that the Underwriters or any of them may waive, in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to the rights of the Underwriters or any of them in respect of any such terms and conditions or any other or subsequent breach or non-compliance, provided that to be binding on an Underwriter any such waiver or extension must be in writing and signed by such Underwriter.
14.3 In the event of any termination of the Underwriters’ obligations under this Agreement by one of the Underwriters in accordance with the terms of this Agreement, the other Underwriters will be deemed contemporaneously to have terminated their obligations under this Agreement unless the other Underwriters or any of them will, within 24 hours after notice of termination is given, notify the Issuer that they are assuming the obligations of the Underwriter terminating its obligations. Any termination by any of the Underwriters pursuant to the provisions of this Agreement will be effected by notice delivered to the Issuer. The rights of termination contained in this Section 1814 are in addition to any other rights or remedies the Underwriters may have in respect of any default, misrepresentation, act or failure to act of the Issuer in respect of any matters contemplated by this Agreement. In the event of any such termination, there shall will be no further liability on the part of such Underwriter, the Issuer or on the part of the Company to such Underwriter Underwriters except in respect of for any liability under Sections 14, provided for in Section 15 and 16Section 16.2.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Student Transportation Inc.)
Termination by Underwriters in Certain Events. (a1) Each Underwriter of the Underwriters shall also be entitled have the right to terminate its obligation to purchase the Offered Units obligations hereunder, without any liability on such Underwriter’s part, by written notice to the Corporation and CIBC in the event that effect given to after the Company date hereof and at or prior to the Closing Time ifof Closing:
(ia) there is a should occur any material change or a any change in a any material fact or a new material fact shall arisearise (other than a change or fact related solely to an Underwriter), or there should be discovered any Underwriter becomes aware of any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment theretoas contemplated by Section 8 hereof, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole)which, in each case, that in the opinion of the Underwriters, acting reasonably, has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, have a significant adverse effect on the market price or value of the Offered Units, Shares or WarrantsShares;
(iib) an order shall have been made there should develop, occur, come into effect or threatened to cease be announced any occurrence of national or suspend trading international consequence or any action, governmental law or regulation or other occurrence of any nature whatsoever which, in the Offered Unitsopinion of the Underwriters, Shares or Warrantsacting reasonably, seriously adversely affects, or to otherwise prohibit will seriously adversely affect, the financial markets or restrict in any manner the distribution or trading business of the Offered Units, Shares Corporation on a consolidated basis and such event would be expected to have a significant adverse effect on the market price or Warrants, or proceedings are announced or commenced for value of the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;Shares; or
(iiic) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency agency, regulatory authority or other instrumentality (including including, without limitation limitation, the CSE TSX and the NYSE or any securities regulatory authority) (other than an Securities Commission involving the Corporation or there is a change of law which, in each case in the reasonable opinion of the Underwriter, operates to prevent, suspend or restrict the trading or distribution of the Shares except for any such inquiry, investigation, proceeding or order based upon solely on the activities of the Underwriters), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion Underwriters and not of the UnderwritersCorporation.
(2) The rights of termination contained in Sections 11, operates 12(1) and 17(1) may be exercised by each Underwriter and are in addition to preventany other rights or remedies such Underwriter may have in respect of any default, restrict act or otherwise materially adversely affect failure to act or non-compliance by the distribution or trading Corporation in respect of any of the Offered Units, Shares or Warrants, or any other securities of the Company;
(iv) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of matters contemplated by this Agreement or otherwise. In the event of any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein.
(b) If any of the Underwriters terminates this Agreement pursuant this Section 18termination, there shall be no further liability on the part of such Underwriter, Underwriter to the Corporation or on the part of the Company Corporation to such Underwriter except in respect of any liability under Sections 1413, 15 14 and 16.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement15. A notice of termination given by one an Underwriter under this Section 18 Sections 11, 12(1) and 17(1) shall not be binding upon the on any other UnderwritersUnderwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Fairfax Financial Holdings LTD/ Can)
Termination by Underwriters in Certain Events. (a) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company at or prior to the Closing Time if:
(i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the board of directors or executive management of the Company, including the departure of the Company’s CEO CEO, CFO, COO or CFO president (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
(iii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE or any securities regulatory authority) (other than an inquiry, investigation, proceeding or order based upon the activities of the Underwriters), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of the Underwriters, operates to prevent, restrict or otherwise materially adversely affect the distribution or trading of the Offered Units, Shares or Warrants, or any other securities of the Company;
(iv) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25October 30, 20212020, or such other date as may be agreed to between the Company and Beacon Canaccord on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein.
(b) If any of the Underwriters terminates this Agreement pursuant this Section 18, there shall be no further liability on the part of such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability under Sections 14, 15 and 16.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(a) Regulatory Out – there be (i) there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in any securities of the Offered Units, Shares Corporation or Warrants, prohibiting or to otherwise prohibit or restrict in any manner restricting the distribution or trading of any of the Offered Units, Common Shares or Warrantsis made, or proceedings are announced announced, commenced or commenced threatened for the making of any such order order, by any securities regulatory authority commission or similar regulatory authority, the Exchange, other stock exchange or judicial authority or the CSEother competent authority, which order and has not been rescinded, revoked or withdrawn;
; or (iiiii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) in relation to the Corporation or any of the directors or officers of the Corporation is commencedannounced, announced commenced or threatened by any securities commission or similar regulatory authority, the Exchange, other stock exchange or any other competent authority or any order is made or has been issued under or pursuant to any federalstatute of Canada or of any province of Canada or of any other jurisdiction, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE or any securities other applicable law or regulatory authority) authority (other than an inquiry, investigation, proceeding unless based solely on the activities or order based upon the alleged activities of the Underwriters), or there is a change in any law, rule regulation or regulation, policy or the interpretation or administration thereof, if, in the sole opinion of the Underwriters or any one of them, acting reasonably, the change, announcement, commencement or threatening thereof materially adversely affects the Corporation or materially prevents or restricts the trading in, or materially adversely impacts the distribution of, the Common Shares;
(b) Material Change Out - there should occur any (i) material change (actual, contemplated or threatened) in or affecting the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Corporation, change of a material fact, or any development that could result in a material change or change of a material fact which, in the reasonable sole opinion of the Underwriters, operates or any one of them, acting reasonably, could reasonably be expected to prevent, restrict have a material adverse effect on the Corporation or otherwise materially adversely affect could reasonably be expected to have a significant effect on the distribution market price or trading value of the Offered Units, Common Shares or Warrantscould reasonably be expected to result in purchasers of Shares exercising their rights under applicable securities laws to withdraw from or rescind their purchase thereof or xxx for damages in respect thereof; or (ii) the Underwriters, or any other securities one of them, shall become aware of any material information with respect to the Corporation which had not been publicly disclosed and which in the sole opinion of the Company;Underwriters or any one of them, acting reasonably, could be expected to have a material adverse effect on the market price or value of the Common Shares; or
(ivc) Disaster Out - there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic financial occurrence of national or international consequence, including any act of terrorism, war or like event, or any law, action, government, law, regulation, inquiry regulation or other occurrence of any naturenature whatsoever, which, in the reasonable sole opinion of the UnderwritersUnderwriters or any one of them, acting reasonably, materially adversely affects or involves, or may will materially adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonablyCorporation; or
(viid) each of Breach Out - the Underwriters and or any one of them, acting reasonably, determines that the Company agree Corporation shall be in writing to terminate breach of, default under or non-compliance with any material representation, warranty, covenant or term, or any condition of this Agreement as provided for hereinagreement.
(b2) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 Section 13 and 16Section 15.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other UnderwritersUnderwriter.
(4) Notwithstanding the foregoing and for the avoidance of doubt, this Agreement may be terminated at any time at or prior to the Closing Time upon the mutual written agreement of the Corporation and AltaCorp if the parties hereto decide not to proceed with the Offering.
Appears in 1 contract
Samples: Underwriting Agreement
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units Shares by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(ia) Material Change Out - there is a shall occur any material change (actual, imminent or reasonably expected), or a change in a material fact or new material fact shall arisefact, or there should be discovered any previously undisclosed material change or material fact required to be disclosed which in the Preliminary Prospectus or reasonable opinion of the Prospectus Underwriters (or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a wholethem), in each caseacting reasonably, that has or would could be expected to havehave a material adverse effect on the market price or value of the Common Shares or any other securities of the Corporation, or the Underwriters shall become aware of any material information with respect to the Corporation which had not been publicly disclosed or disclosed in writing to the Underwriters at or prior to the date of the Engagement Letter and which in the sole opinion of the Underwriters (or any of them), acting reasonably, could be expected to have a significant material adverse effect on the market price or value of the Offered Units, Common Shares or Warrants;any other securities of the Corporation; or
(iib) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
Disaster Out - (iiii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order or ruling is made or issued under or pursuant to any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE statute of Canada or any securities regulatory authority) (other than an inquiryprovince, investigation, proceeding or order based upon the activities of the Underwriters)United States or any state thereof or by any official of any stock exchange or by any other regulatory authority having jurisdiction over a material portion of the business and affairs of the Corporation and its subsidiaries (on a consolidated basis) or otherwise, or there is a any change in any of law, rule or regulation, or the interpretation interpretation, pronouncement or administration thereof, which, thereof or in respect thereof which in the reasonable opinion of the UnderwritersUnderwriters (or any of them), acting reasonably, may prevent or operates to prevent, prevent or restrict or otherwise materially adversely affect the distribution of, trading in, or trading marketability of the Offered Units, Common Shares or Warrants, or the trading in any other securities of the Company;
Corporation; or (ivii) if there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest without limitation terrorism or major financial, political accident) or economic occurrence of national or international consequence, acts of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions or any action, government, law, regulation, inquiry or other occurrence of any nature, nature which, in the reasonable opinion of the UnderwritersUnderwriters (or any of them), materially adversely affects or involves, or may materially adversely affect or involve, the Canadian financial markets in Canada or the United States generally or the business, operations or affairs of the Company Corporation or its subsidiaries, taken as a whole, or the marketability market price or value of the Offered Units, Common Shares or Warrants;any other securities of the Corporation; or
(vc) Cease Trade Out - any order to cease or suspend trading in any securities of the Company Corporation, or prohibiting or restricting the distribution of the Common Shares is made, or any proceeding is announced or commenced for the making of any such order, by any securities regulatory authority, any stock exchange or by any other competent authority, and has not been rescinded, revoked or withdrawn
(d) Breach Out - the Corporation is in breach of or default under or in non-compliance with any material representation, warranty, term, condition or covenant of this Agreement or any representation or warranty given by the Company in Agreement.
(2) If this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued terminated by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for herein.
(b) If any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 13 and 1615.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other Underwriters.
Appears in 1 contract
Termination by Underwriters in Certain Events. (a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units Shares by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:
(ia) Material Change Out - there is a shall be any material change in the affairs of the Corporation, or a change in a material fact or new material fact shall arisefact, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or Prospectus, the Final Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to havecase which, in the sole reasonable opinion of the Underwriters (or any of them), acting reasonably, has or would be expected to have a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;Common Shares; or
(iib) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
Disaster Out - (iiii) any inquiry, action, suit, proceeding or investigation or other proceeding (whether formal or informal) (including matters of regulatory transgression or unlawful conduct) is commenced, announced or threatened or any order is made or issued under or pursuant to by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including including, without limitation limitation, the CSE TSX or any securities regulatory authority) (other than an inquiry, investigation, proceeding authority or order based upon the activities of the Underwriters), any law or there regulation is a change in any law, rule enacted or regulation, or the interpretation or administration thereof, which, changed which in the reasonable opinion of the UnderwritersUnderwriters (or any of them), acting reasonably, operates to prevent, prevent or restrict the trading of the Common Shares or otherwise materially and adversely affects or will materially and adversely affect the distribution market price or trading value of the Offered Units, Common Shares or Warrants, or any other securities of the Company;
Corporation; or (ivii) if there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic financial occurrence of national or international consequence, consequence (including terrorism) or any action, government, law, regulation, inquiry law or other occurrence of any nature, which, regulation which in the reasonable opinion of the UnderwritersUnderwriters (or any of them) seriously adversely affects, materially adversely affects or involves, or may materially will, or could reasonably be expected to, seriously adversely affect affect, or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;Corporation and its subsidiaries taken as a whole; or
(vc) Breach Out - the Company Corporation is in breach of any material term, condition or covenant of this Agreement or any material representation or warranty given by the Company Corporation in this Agreement becomes or is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(vii) each of the Underwriters and the Company agree in writing to terminate this Agreement as provided for hereinfalse.
(b2) If this Agreement is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 13 and 1615.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other Underwriters.
Appears in 1 contract
Termination by Underwriters in Certain Events. (a) 14.1 Each Underwriter shall also will be entitled to terminate its obligation to purchase the Offered Units Debentures, without liability on the Underwriter’s part, by written notice to that effect given to the Company Issuer and Scotia at or prior to the Closing Time ifTime:
(ia) there is a material change or a change in a material fact or new material fact shall ariseif, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or the Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any of them), acting reasonably, a significant adverse effect on the market price or value of the Offered Units, Shares or Warrants;
(ii) an order shall have been made or threatened to cease or suspend trading in the Offered Units, Shares or Warrants, or to otherwise prohibit or restrict in any manner the distribution or trading of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
(iii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order is made or issued under or pursuant to any relevant statute or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including or any third party, including, without limitation limitation, the CSE TSX or any securities regulatory authority) authority (other than an any such inquiry, investigationaction, suit, investigation or other proceeding or order based upon the activities relating solely to any of the Underwriters), ) or there is a any change in any of law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of that Underwriter, acting in good faith, (i) operates to prevent or materially restrict the Underwriterstrading in, or materially and adversely impacts the distribution or the marketability of the Debentures or the Underlying Shares, or materially and adversely affects or will materially and adversely affect the market price or value of the Debentures or the Underlying Shares, as applicable; or (ii) operates to prevent, suspend, hinder, delay, restrict or otherwise materially adversely affect the distribution or trading of transaction contemplated by the Offered Units, Shares or Warrants, or any other securities of the CompanyFinal Prospectus;
(ivb) there occurs any material change (actual, imminent or reasonably expected) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the Issuer or its subsidiaries, taken as a whole, howsoever caused, or there should be discovered any previously undisclosed material fact (other than a material fact related solely to any of the Underwriters) or there should occur a change (other than a change related solely to any of the Underwriters) in a material fact contained in the Final Prospectus, in each case which, in the opinion of that Underwriter, could reasonably be expected to have a significant adverse effect on the market price or value of the Debentures or the Underlying Shares;
(c) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic financial occurrence of national or international consequence, including any act of terrorism, war or like event, or any governmental action, government, law, regulation, inquiry or other occurrence of any nature, nature which, in the reasonable opinion of the Underwriterssuch Underwriter, materially adversely affects or involves, or may reasonably be expected to materially and adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company Issuer and its subsidiaries, taken as a whole, or the marketability of the Offered Units, Shares Debentures or Warrants;
(v) the Company is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company in this Agreement is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonablyUnderlying Shares; or
(viid) each there is announced any change or proposed change in the Tax Act or U.S. Tax Code or any other tax laws of Canada or the United States or any other jurisdiction and such change would, in the opinion of the Underwriters Underwriter, acting reasonably, be expected to have a significant adverse effect on the market price, value or marketability of the Debentures or the Underlying Shares.
14.2 All terms and the Company agree conditions in writing to terminate this Agreement will be construed as provided for herein.
(b) If conditions, and any breach of or failure to comply with any such terms or conditions which in the reasonable opinion of any of the Underwriters terminates materially and adversely affects the sale or distribution by it of the Debentures will entitle each Underwriter at any time prior to the Closing Time to terminate its obligations under this Agreement forthwith by written notice to that effect given to the Issuer. It is understood that the Underwriters or any of them may waive, in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to the rights of the Underwriters or any of them in respect of any such terms and conditions or any other or subsequent breach or non-compliance, provided that to be binding on the Underwriters any such waiver or extension must be in writing.
14.3 In the event of any termination of the Underwriters’ obligations under this Agreement by one of the Underwriters in accordance with the terms of this Agreement, the other Underwriters will be deemed contemporaneously to have terminated their obligations under this Agreement unless the other Underwriters or any of them will, within 24 hours after notice of termination is given, notify the Issuer that they are assuming the obligations of the Underwriter terminating its obligations. Any termination by any of the Underwriters pursuant to the provisions of this Agreement will be effected by notice delivered to the Issuer. The rights of termination contained in this Section 1814 are in addition to any other rights or remedies the Underwriters may have in respect of any default, misrepresentation, act or failure to act of the Issuer in respect of any matters contemplated by this Agreement. In the event of any such termination, there shall will be no further liability on the part of such Underwriter, the Issuer or on the part of the Company to such Underwriter Underwriters except in respect of for any liability under Sections 14, provided for in Section 15 and 16Section 16.2.
(c) The right of the Underwriters to terminate their obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Student Transportation Inc.)
Termination by Underwriters in Certain Events.
(a1) Each Underwriter shall also be entitled to terminate its obligation to purchase the Offered Units by written notice to that effect given to the Company Corporation at or prior to the Closing Time if:if:
(ia) Material Change Out - there is a shall occur or come into effect any material change (which for the avoidance of doubt includes any change to the board of directors or a executive management of the Corporation, including the departure of the Corporation’s CEO, CFO, COO or President, or persons in equivalent positions) or any change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material change or material fact required to be disclosed in the Preliminary Prospectus or Prospectus, the Final Prospectus or any amendment thereto, or a Material Adverse Effect on the business or affairs (including, for greater certainty, any change to the executive management of the Company, including the departure of the Company’s CEO or CFO (or persons in equivalent positions)) of the Company and the Subsidiaries (taken as a whole), in each case, that has or would be expected to have, in the sole opinion of the Underwriters (or any one of them), in each case acting reasonably, a significant adverse effect on the business or affairs of the Corporation and its subsidiaries (taken as a whole) or on the market price or value of the Offered Units, Shares or Warrantssecurities of the Corporation;
(iib) an order shall have been made Disaster Out – (i) there should develop, occur or threatened come into effect or existence any event, action, state or condition (including without limitation, terrorism or accident) or any law or regulation, inquiry or major financial, political or economic occurrence of national or international consequence, any declared pandemic of a serious contagious disease (including the COVID-19 pandemic, to cease the extent that there is any material adverse development related thereto after November 9, 2020, or suspend trading similar event or the escalation thereof), which in the Offered Unitsreasonable opinion of the Underwriters (or any one of them), Shares seriously adversely affects or Warrantsinvolves or may seriously adversely affect or involve the financial markets in Canada or the United States or the business, operations or to otherwise prohibit affairs of the Corporation and its subsidiaries (taken as a whole) or restrict in any manner the distribution or trading marketability of the Offered Units, Shares or Warrants, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the CSE, which order has not been rescinded, revoked or withdrawn;
Securities; (iiiii) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened in relation to the Corporation or any one of the officers or directors of the Corporation or any of its principal shareholders where wrong-doing is alleged or any order is made or issued under or pursuant to any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality (including without limitation the CSE TSXV or any securities regulatory authority) which involve a finding of wrong-doing; or (iii) any order, action, investigation or other than an inquiry, investigation, proceeding which cease trades or order based upon the activities of the Underwriters), or there is a change in any law, rule or regulation, or the interpretation or administration thereof, which, in the reasonable opinion of the Underwriters, otherwise operates to prevent, prevent or restrict or otherwise materially adversely affect the distribution or trading of the Offered Units, Common Shares or Warrants, or any other securities of the CompanyCorporation is made, announced or threatened by a securities regulatory authority;
(ivc) there should develop, occur or come into effect or existence any event, action, state, or condition or any action, law or regulation, inquiry, including, without limitation, terrorism, accident, pandemic (including any material escalation in Breach Out - the severity of the COVID-19 Outbreak), natural disaster, public protest or major financial, political or economic occurrence of national or international consequence, or any action, government, law, regulation, inquiry or other occurrence of any nature, which, in the reasonable opinion of the Underwriters, materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada or the United States or the business, operations or affairs of the Company or the marketability of the Offered Units, Shares or Warrants;
(v) the Company Corporation is in breach of any material term, condition or covenant of this Agreement or any representation or warranty given by the Company Corporation in this Agreement becomes or is or becomes false in any material respect;
(vi) a receipt for the Prospectus has not been issued by the OSC by 5:00 p.m. (Toronto time), on January 25, 2021, or such other date as may be agreed to between the Company and Beacon on behalf of the Underwriters, acting reasonably; or
(vii2) each of the Underwriters and the Company agree in writing to terminate If this Agreement as provided for herein.
(b) If is terminated by any of the Underwriters terminates this Agreement pursuant this to Section 1817(1), there shall be no further liability on the part of such Underwriter or of the Corporation to such Underwriter, or on the part of the Company to such Underwriter except in respect of any liability which may have arisen or may thereafter arise under Sections 14, 15 Section 13 and 16Section 15.
(c3) The right of the Underwriters or any of them to terminate their respective obligations under this Agreement is in addition to such other remedies as they may have, or have in respect of any default, act or failure to act of the Company Corporation in respect of any of the matters contemplated by this Agreement. A notice of termination given by one Underwriter under this Section 18 17 shall not be binding upon the other Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
