The Offering. (a) The sale of the Shares to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company and the Agents, acting reasonably, in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares. (b) The Company agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein. (c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces. (d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares. (e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
The Offering. (a) The sale of the Shares Corporation hereby agrees to the Purchasers shall be effected in a manner that is in secure compliance with applicable Securities all Applicable Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company and the Agents, acting reasonably, on a timely basis in connection with the Offering; howeverdistribution or sale, it is understood as applicable, of the Offered Shares. The Corporation will execute and agreed that file with the Agents shall have no obligation Securities Regulators all forms, notices and certificates relating to purchase the SharesOffering required to be filed pursuant to the Applicable Laws in the Selling Jurisdictions in the time required by Applicable Laws in the Selling Jurisdictions.
(b) The Company agrees that Corporation hereby appoints the Agents shall have to act as agent and financial advisor to the Corporation and grants the Agents the right to invite one or more form and manage a syndicate of investment dealers (eachdealers, including a “Selling Firm”) U.S. Placement Agent, to form offer and sell the Offered Shares on a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms"commercially reasonable efforts" private placement basis, without underwriter liability, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firmsappointment. The Agents shall ensure that any Selling Firm appointed pursuant Notwithstanding anything to the provisions of contrary contained herein or any oral representations or assurances previously or subsequently made by the parties hereto, this subsection 3(b) Agreement does not constitute a commitment by, or with whom legally binding obligation of, the Agents have a contractual relationship or any of their affiliates to act as underwriters, initial purchasers, arrangers, and/or placement agents in connection with respect any offering or sale of securities in the capital of the Corporation by the Corporation, including the Offered Shares, or to provide or arrange any financing, other than the Offering, if any, agrees appointment as agent in connection with the Agents to comply Offering in accordance with the covenants prior sentence and obligations given by otherwise on the Agents terms set forth herein.
(c) The Company represents and warrants to, and covenants and agrees with, Corporation understands that the Agents that will have the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant right to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best commercially reasonable efforts to obtain a Passport Decision Document arrange for the Final Prospectus Offered Shares to be purchased by the Purchasers in order to qualify the Shares for distribution Selling Jurisdictions on a private placement basis in each compliance with the Applicable Laws such that the offer and sale of the Qualifying ProvincesOffered Shares does not obligate the Corporation to file a prospectus, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (registration statement or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provincessimilar document.
(d) In order to comply with applicable U.S. securities laws, any press release announcing or otherwise concerning the Offering will include an appropriate notation on each page substantially as follows: "Not for distribution to United States Newswire Services or for dissemination in the United States". In addition, any such press release will contain substantially the following disclaimer: "This news release does not constitute an offer to sell or a solicitation of an offer to buy any of the securities in the United States. The Agents shallsecurities have not been and will not be registered under the United States Securities Act of 1933, upon as amended (the Company obtaining a Passport Decision Document "U.S. Securities Act") or any state securities laws and may not be offered or sold in the United States or to, or for the Final Prospectus account or benefit of, U.S. persons unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available. “U.S. persons” and “United States” are as defined in Regulation S under the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the SharesU.S. Securities Act.”
(e) Prior Neither the Corporation nor the Agents and each of their respective representatives (including any Selling Firms, if applicable) will: (i) provide to any prospective purchasers of Offered Shares any document or other material that would constitute an offering memorandum within the meaning of Applicable Laws; or (ii) engage in any form of general solicitation or general advertising in connection with the offer and sale of the Offered Shares, including any advertisement, article, notice or other communication published in any newspaper, magazine, printed public media, printed media or similar media, or broadcast over radio, television or telecommunications, including electronic display, or any seminar or meeting relating to the filing offer and sale of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall Offered Shares whose attendees have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed been invited by themgeneral solicitation or advertising.
Appears in 1 contract
Samples: Agency Agreement (Cybin Inc.)
The Offering. (a) The sale Each purchaser who is resident in a Qualifying Jurisdiction shall purchase the Offered Units pursuant to the Final Prospectus. Each other purchaser not resident in a Qualifying Jurisdiction, or located outside of a Qualifying Jurisdiction, shall purchase Offered Units, which have been qualified by the Final Prospectus in Canada, only on a private placement basis under the applicable securities laws of the Shares to jurisdiction in which the Purchasers shall be effected purchaser is resident or located, in a manner that is in compliance accordance with applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada such procedures as may be agreed upon by the Company and the AgentsAgents may mutually agree, acting reasonably, in connection order to fully comply with Applicable Laws and the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Sharesterms of this Agreement.
(b) The Company hereby agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with all Applicable Securities Laws in the covenants Qualifying Jurisdictions on a timely basis in connection with the distribution of the Offered Units and obligations given the Company shall execute and file with the Securities Commissions all forms, notices and certificates relating to the Offering required to be filed pursuant to Applicable Securities Laws in the Qualifying Jurisdictions within the time required, and in the form prescribed, by Applicable Securities Laws in the Agents hereinQualifying Jurisdictions.
(c) The Company represents and warrants toAgents shall use their “best efforts” to arrange for the purchase of the Offered Units for sale:
(i) in the Qualifying Jurisdictions and, and covenants and agrees with, subject to the Agents that consent of the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document (acting reasonably); and
(ii) in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each such other jurisdictions outside of the Qualifying Provinces Jurisdictions and the United States where permitted by and in accordance with Applicable Securities Laws and the Canadian Securities Regulators under applicable Securities Lawssecurities laws of such other jurisdictions, and will use its best efforts to obtain a Passport Decision Document for provided that in the Final Prospectus in order to qualify the Shares for distribution in each case of jurisdictions other than the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the ClosingJurisdictions, the Company shall have permitted the Agents not be required to review each of the Preliminary Prospectus become registered or file a prospectus or registration statement or similar document in such jurisdictions and the Final Prospectus and shall allow the Agents Company will not be subject to conduct any due diligence investigations which they reasonably require continuous disclosure requirements in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by themsuch jurisdiction.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale of the Shares Offered Units to the Purchasers shall will be effected in a manner that is in compliance with applicable Securities Laws and upon the terms set out in the Final Prospectus and in this Agreement. The Agents will use their best commercially reasonable efforts to arrange for Purchasers for the Shares Offered Units in the Qualifying Provinces Jurisdictions and in those jurisdictions outside of Canada as may be agreed upon by the Company Corporation and the Agents, each acting reasonably, in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares.
(b) The Company Corporation agrees that the Agents shall will have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the SharesOffered Units. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agentsgroup. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees trustee of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. .
(c) The Agents shall will ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering1(b), if any, agrees with will: (i) be compensated by the Agents from their compensation hereunder; and (ii) agree to comply with the covenants and obligations given by the Agents herein.
(cd) The Company Corporation represents and warrants to, and covenants and agrees with, to the Agents that the Company Corporation has prepared and filed the Preliminary Prospectus and other related documents (including, without limitation, any Marketing Materials) and has obtained pursuant to the Passport System, System a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus receipt or deemed receipt therefor in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus Jurisdictions in order to qualify the Shares Offered Units and the CFF Units for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) Jurisdictions and until the day on which the distribution of the Shares Offered Units and the CFF Units is completed, the Company Corporation will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares Offered Units and the CFF Units in the Qualifying ProvincesJurisdictions.
(de) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver have delivered one copy of the Final Prospectus (together with any amendments theretoSupplementary Material, if any) to all persons resident in the Qualifying Provinces Jurisdictions who are to acquire the SharesOffered Units.
(ef) Prior The Corporation and the Agents covenant and agree:
(i) not to provide any potential investor of Offered Units with any Marketing Materials unless a template version of such Marketing Materials has been filed by the Corporation with the applicable Securities Regulators on or before the day such Marketing Materials are first provided to any potential investor of Offered Units;
(ii) not to provide any potential investor with any materials or information in relation to the filing of Offering or the Preliminary Prospectus, Corporation other than: (A) such Marketing Materials that have been approved and filed in accordance with this Section 1(f); (B) the Final Prospectus or any Supplementary Material; (C) the Investor Presentation and (D) the Standard Term Sheet; and
(iii) that any Marketing Materials approved and filed in accordance with this Section 1(f) and any standard term sheets approved in writing by the Corporation and the Closing, Agents will only be provided to potential investors in the Company shall have permitted Qualifying Jurisdictions where the provision of such Marketing Materials or standard term sheets does not contravene applicable Securities Laws.
(g) The Corporation and the Agents to review each of acknowledge that the Preliminary Prospectus Offered Units have not been and will not be registered under the Final Prospectus and shall allow the Agents to conduct U.S. Securities Act or any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable state Securities Laws and in order to enable the Agents to responsibly execute the certificate may not be offered or sold in the Preliminary Prospectus United States or to, or for the account or benefit of, U.S. Persons, nor may the Warrants or the Compensation Warrants be exercised in the United States or by or on behalf of a U.S. Person, except pursuant to exemptions from the registration requirements of the U.S. Securities Act and the Final Prospectus required to be executed by themApplicable Laws of any state of the United States in the manner specified in this Agreement.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale Each Purchaser resident in a Qualifying Jurisdiction will purchase the Offered Securities pursuant to the Prospectus Supplement. Each other Purchaser participating in the Offering not resident in a Qualifying Jurisdiction, or located outside of a Qualifying Jurisdiction, shall purchase Offered Securities, only on a private placement basis under the applicable securities laws of the Shares to jurisdiction in which the Purchasers shall be effected purchaser is resident or located, in a manner that is in compliance accordance with applicable Securities Laws and upon such procedures as the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company Corporation and the AgentsUnderwriters may mutually agree, acting reasonably, in order to fully comply with applicable laws and the terms of this Agreement (including Schedule “A” to this Agreement with respect to offers and sales of Offered Securities in the United States). The Corporation hereby agrees to secure compliance with all Securities Laws of the Qualifying Jurisdictions on a timely basis in connection with the distribution of the Offered Securities and the Corporation shall execute and file with the Canadian Securities Regulators all forms, notices and certificates relating to the Offering required to be filed pursuant to applicable Securities Laws in the Qualifying Jurisdictions within the time required, and in the form prescribed, by applicable Securities Laws in the Qualifying Jurisdictions. The Corporation also agrees to file within the periods stipulated under Applicable Laws outside of Canada and at the Corporation’s expense all private placement forms required to be filed by the Corporation in connection with the Offering and pay all filing fees required to be paid in connection therewith so that the distribution of the Offered Securities outside of Canada may lawfully occur without the necessity of filing a prospectus or any similar document under the Applicable Laws outside of Canada The Underwriters agree to assist the Corporation in all reasonable respects to secure compliance with all regulatory requirements in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares.
(b) The Company Corporation understands that although this Agreement is presented on behalf of the Underwriters as purchaser, the Underwriters may arrange for Substituted Purchasers for the Offered Securities. It is further understood that the Underwriters agree to purchase or cause to be purchased the Units, and if the Over-Allotment Option is exercised, the Additional Securities, as applicable, being issued by the Corporation and that this commitment is not subject to the Underwriters being able to arrange Substituted Purchasers. Each Substituted Purchaser will purchase Offered Securities at the respective Issue Price set forth in the paragraphs above, and to the extent that Substituted Purchasers purchase Offered Securities, the obligations of the Underwriters to do so will be reduced by the number of Offered Securities purchased by the Substituted Purchasers from the Corporation (but will not relieve the Underwriters from paying to the Corporation the Issue Price per Offered Security purchased by such Substituted Purchasers). Any reference in this Agreement hereafter to “Purchasers” will be taken to be a reference to the Underwriters, as the initial committed purchasers, and to the Substituted Purchasers, if any. Notwithstanding the foregoing all Offered Securities sold pursuant to Rule 144A will first be purchased by the Underwriters, acting as principal, and resold in transactions in accordance with Rule 144A.
(c) The Corporation agrees that the Agents shall Underwriters will have the right to invite one or more investment registered dealers or brokers (each, a “Selling Firm”) as agents to form a selling group to participate in assist with the soliciting sale of offers to purchase the SharesOffered Securities. The Agents Underwriters have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of group, such Selling Firms) and compensation to be payable by the AgentsUnderwriters. The Company grants all of the rights Underwriters will, and benefits of this Agreement to will cause any Selling Firm so appointed by to agree to, comply with applicable Securities Laws in connection with the Agents distribution of the Units and appoints will offer the Agents Units for sale to the public directly and through Selling Firms upon the terms and conditions set out in the Prospectus Supplement and this Agreement. The Underwriters will: (i) use all commercially reasonable efforts to complete and cause each Selling Firm to complete the distribution of the Offered Securities as trustees soon as reasonably practicable but in any event no later than 7 days after the Corporation’s filing of such rights the Prospectus Supplement; and benefits for such (ii) as soon as practicable after the completion of the distribution of the Offered Securities, and in any event within 30 days after the Closing Date, notify the Corporation thereof, on their behalf and on behalf of the Selling Firms, and provide the Agents hereby accept such trust Corporation with a breakdown of the number of Offered Securities distributed in the Qualifying Jurisdictions and agree any other jurisdictions subject to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents hereinSection 3(c)(ii).
(cd) The Company represents and warrants toCorporation will forthwith: (i) file, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after concurrently with the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces Supplement and other documents with the Canadian Securities Regulators as required under applicable Securities Laws, ; and will (ii) elect to use its best efforts to obtain a the Passport Decision Document for System and designate the Final Prospectus in order to qualify OSC as the Shares for distribution in each principal regulator thereunder.
(e) Until the earlier of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. date on which: (Vancouver time)/5:00 p.m. (Toronto timei) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares Offered Securities is completed; or (ii) the Underwriters have exercised their termination rights pursuant to Sections 13 and 14, the Company Corporation will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable the Securities Laws to continue to qualify the distribution of the Shares Offered Securities or, in the event that the Offered Securities have, for any reason, ceased so to qualify, to so qualify again the Offered Securities, as applicable, for distribution in the Qualifying Provinces.
(d) Jurisdictions. The Agents shallUnderwriters will, upon the Company obtaining a Passport Decision Document for Corporation filing the Final Prospectus Supplement, and upon receiving sufficient copies of the Prospectus Supplement from the Principal RegulatorCorporation in accordance with subsection 5(d)(i), deliver one copy of the Final Prospectus Supplement (together with any amendments thereto) to all persons resident in the Qualifying Provinces Jurisdictions who are to acquire the SharesOffered Securities.
(ef) Prior to the filing of the Preliminary Prospectus, the Final Prospectus Supplement and the Closing, the Company shall Corporation will have permitted the Agents Underwriters to review each of the Preliminary Prospectus Supplement and the Final Prospectus and shall will allow the Agents Underwriters to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents Underwriters under applicable Securities Laws and in order to enable the Agents Underwriters to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus Supplement required to be executed by them. Unless so advised otherwise, the Underwriters will be entitled to rely on the advice or absence of advice, as the case may be, of the Corporation in the course of their due diligence investigations.
(g) In carrying out their responsibilities under this Agreement, the Underwriters will necessarily rely on information prepared or supplied by the Corporation. The Underwriters will apply reasonable standards of diligence to their due diligence inquiries. However, the Underwriters will be entitled to reasonably rely on and assume no obligation to verify the accuracy or completeness of such information and under no circumstances will the Underwriters be liable to the Corporation or any securityholder for any damages arising out of the inaccuracy or incompleteness of such information. The Corporation maintains sole responsibility for the accuracy and completeness of the Offering Documents, all Documents Incorporated by Reference, and any other disclosure document to be prepared in connection with the Offering, except any portions thereof that are provided by the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement
The Offering. (a) The sale of Each Purchaser resident in a Qualifying Province shall purchase the Offered Shares pursuant to the Purchasers shall be effected in a manner that is in Final Prospectus. The Corporation hereby agrees to secure compliance with applicable all Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in of the Qualifying Provinces and on a timely basis in those jurisdictions outside connection with the distribution of Canada as may be agreed upon the Offered Shares. Upon request by the Company Underwriters, and subject to the provisions of subsection 4(b), the Corporation and the AgentsUnderwriters each agree to file within the periods stipulated under the Securities Laws of the United States, acting reasonablyand at the expense of the Corporation, all post-closing filings required to be made by the Corporation or the Underwriters, as applicable, in connection with the Offering in the United States. The Underwriters agree to assist the Corporation in all reasonable respects to secure compliance with all regulatory requirements in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares.
(b) The Company Corporation understands that although this Agreement is presented on behalf of the Underwriters as purchasers, the Underwriters may arrange for substituted purchasers (the “Substituted Purchasers”) for the Offered Shares. It is further understood that the Underwriters agree to purchase or cause to be purchased the Purchased Shares, and if the Over-Allotment Option is exercised, the Additional Shares being issued by the Corporation and that this commitment is not subject to the Underwriters being able to arrange Substituted Purchasers, except in respect of the GCILP Group which is conditional on the Corporation providing information and documentation related thereto as required by the Co-Lead Underwriters, acting reasonably. Each Substituted Purchaser shall purchase Offered Shares at the Issue Price set forth in the paragraphs above, and to the extent that Substituted Purchasers purchase Offered Shares, the obligations of the Underwriters to do so will be reduced by the number of Offered Shares purchased by the Substituted Purchasers from the Corporation (but shall not relieve the Underwriters from paying to the Corporation the Issue Price per Offered Share purchased by such Substituted Purchasers). Any reference in this Agreement hereafter to “Purchasers” shall be taken to be a reference to the Underwriters, as the initial committed purchasers, and to the Substituted Purchasers, if any. Notwithstanding the foregoing all Offered Shares sold pursuant to Rule 144A shall first be purchased by the Underwriters, acting as principal, and resold in transactions in accordance with Rule 144A;
(c) The Corporation agrees that the Agents Underwriters shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Offered Shares. The Agents Underwriters have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of group, such Selling Firms) compensation to be payable by the Underwriters. Subject to Sections 16 and 17 hereof, the Agents. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents Underwriters and appoints the Agents Underwriters as trustees of such rights and benefits for such Selling Firms, and the Agents Underwriters hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents Underwriters shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b3(c) or with whom the Agents Underwriters have a contractual relationship with respect to the Offering, if any, agrees with the Agents Underwriters to comply with the covenants and obligations given by the Agents hereinUnderwriters herein or to which the Underwriters are subject.
(cd) The Company Corporation represents and warrants to, and covenants and agrees with, the Agents Underwriters that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company Corporation has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Preliminary Prospectus and other related documents relating to the proposed distribution in each of the Qualifying Provinces of the Offered Shares in accordance with the Securities Laws and the Corporation shall obtain a receipt for the Preliminary Prospectus from the Principal Regulator on its own behalf and on behalf of the other Canadian Securities Regulators under applicable Securities Laws, pursuant to the Passport System and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not NP 11-202 by no later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16January 23, 2012 2018.
(e) The Corporation shall promptly resolve all comments received of, or deficiencies raised by, the Canadian Securities Regulators with respect to the Preliminary Prospectus as soon as possible after receipt of such comments. The Corporation shall have prepared and filed the Final Prospectus and other related documents relating to the proposed distribution of the Offered Shares in the Qualifying Provinces in accordance with the Securities Laws and the Corporation shall obtain a receipt for the Final Prospectus from the Principal Regulator on its own behalf and on behalf of the other Canadian Securities Regulators pursuant to the Passport System and NP 11-202 by 5:00 pm (Toronto time) on January 30, 2018 (or such other time and/or later date as the Company Corporation and the Co-Lead Agent Underwriters may agree).
(f) and until Until the day earlier of the date on which which: (i) the distribution of the Offered Shares is completed; or (ii) the Underwriters have exercised their termination rights pursuant to Sections 12 and 13, the Company Corporation will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable the Securities Laws to continue to qualify the distribution of the Offered Shares or, in the event that the Offered Shares have, for any reason, ceased so to qualify, to so qualify again the Offered Shares, as applicable, for distribution in the Qualifying Provinces.
(d) . The Agents Underwriters shall, upon the Company Corporation obtaining a Passport Decision Document receipt for the Final Prospectus from or on behalf of each of the Principal RegulatorCanadian Securities Regulators, and upon receiving sufficient copies of the Final Prospectus from the Corporation in accordance with subsection 5(d)(ii), deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Offered Shares.
(eg) Prior to the filing of the Preliminary Prospectus, the filing of the Final Prospectus and the Closing, the Company Corporation shall have permitted the Agents Underwriters to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents Underwriters to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents underwriters under applicable Securities Laws and in order to enable the Agents Underwriters to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them. Unless so advised otherwise, the Underwriters will be entitled to rely on the advice or absence of advice, as the case may be, of the Corporation in the course of their due diligence investigations.
(h) In carrying out their responsibilities under this Agreement, the Underwriters will necessarily rely on information prepared or supplied by the Corporation. The Underwriters will apply reasonable standards of diligence to their due diligence inquiries. However, the Underwriters will be entitled to rely on and assume no obligation to verify the accuracy or completeness of such information and under no circumstances will the Underwriters be liable to the Corporation or any securityholder for any damages arising out of the inaccuracy or incompleteness of such information. The Corporation maintains sole responsibility for the accuracy and completeness of the Offering Documents, all Documents Incorporated by Reference, and any other disclosure document to be prepared in connection with the Offering, except any portions thereof that are provided by the Underwriters.
Appears in 1 contract
The Offering. (a) The sale of the Shares Units to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms and conditions set out in the Prospectus and in this Agreement.
(b) Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Units pursuant to the Final Prospectus. The Agents will use their best efforts to arrange for Purchasers for the Shares Each Purchaser in the Qualifying Provinces and United States shall purchase the Units (or Additional Securities, as applicable) pursuant to the Final U.S. Placement Memorandum. Each Purchaser in those jurisdictions outside of Canada the United States shall also purchase the Units or Additional Securities in accordance with Schedule “A” to this Agreement. Each other Purchaser shall purchase the Units in accordance with such procedures as may be agreed upon by the Company Corporation and the AgentsUnderwriters may mutually agree, acting reasonably, in order to fully comply with applicable Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including as to the filing of any notices or forms, on a timely basis in connection with the Offering; however, it is understood and agreed distribution of the Units so that the Agents shall have no obligation distribution of the Units in the Selling Jurisdictions outside of Canada and the United States may lawfully occur so as not to purchase require registration or filing of a prospectus with respect thereto or compliance by the SharesCorporation with regulatory requirements (including any continuous disclosure obligations) under the laws of, or subject the Corporation (or any of its directors, officers or employees) to any inquiry, investigation or proceeding of any securities regulatory authority, stock exchange or other authority under applicable Securities Laws in, such Selling Jurisdictions outside of Canada and the United States.
(bc) The Company Corporation agrees that the Agents Underwriters shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the SharesUnits. The Agents Underwriters shall have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the AgentsUnderwriters. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents Underwriters and appoints the Agents Underwriters as trustees of such rights and benefits for such Selling Firms, and the Agents Underwriters hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Any Underwriter who appoints a Selling Firm appointed pursuant to the provisions of this subsection 3(bSection 3(c) or with whom the Agents have a contractual relationship with respect shall use its commercially reasonable efforts to the Offering, if any, ensure such Selling Firm agrees with the Agents Underwriters to comply with the covenants and obligations given by the Agents Underwriters herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Underwriting Agreement
The Offering. (a) Each purchaser of Offered Units pursuant to the Offering resident in a Qualifying Jurisdiction shall purchase the Offered Units pursuant to the Final Prospectus. The sale Company hereby agrees to comply with all applicable Canadian Securities Laws of the Shares Qualifying Jurisdictions on a timely basis in connection with the distribution of the Offered Units to enable the Purchasers shall Units and the Over-Allotment Units, if applicable, to be effected lawfully distributed in a manner that is the Qualifying Jurisdictions in accordance with Canadian Securities Laws through the Underwriters or any other investment dealers or brokers registered as such in the Qualifying Jurisdictions and acting in compliance with applicable Canadian Securities Laws applicable to them and upon the terms set out in the Prospectus and in this Agreementof their respective registrations. The Agents will use their best efforts Underwriters agree to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by assist the Company and the Agents, acting reasonably, in all reasonable respects to secure compliance with all regulatory requirements in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares.
(b) The Company understands that although this Agreement is presented on behalf of the Underwriters as purchasers, the Underwriters may arrange for substituted purchasers (the “Substituted Purchasers”) for the Offered Units; and in connection with private placements of the Offered Units in the United States only in accordance with the U.S. Securities Laws, the provisions of this Agreement and, without limiting the foregoing, specifically Schedule “A” of this Agreement. It is further understood that the Underwriters agree to purchase or cause to be purchased the Units, and if the Over-Allotment Option is exercised, the Over- Allotment Units being issued by the Company and that this commitment is not subject to the Underwriters being able to arrange Substituted Purchasers. Each Substituted Purchaser shall purchase Offered Units at the Issue Price, and to the extent that Substituted Purchasers purchase Offered Units, the obligations of the Underwriters to do so will be reduced by the number of Offered Units purchased by the Substituted Purchasers from the Company (but shall not relieve the Underwriters from paying to the Company the Issue Price per Offered Unit purchased by such Substituted Purchasers). Any reference in this Agreement hereafter to “purchasers” shall be taken to be a reference to the Underwriters, as the initial committed purchasers, and to the Substituted Purchasers, if any. Notwithstanding the foregoing all Offered Units sold pursuant to Rule 144A shall first be purchased by the Underwriters, acting as principal, and resold in transactions in accordance with Rule 144A.
(c) The Company agrees that the Agents shall Underwriters shall, at their own expense, have the right to invite appoint one or more registered investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the SharesOffered Units. The Agents Underwriters have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of group, provided that such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firmscompensation shall be payable by, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firmssole responsibility of, the Underwriters. The Agents Underwriters shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b1(c) or with whom the Agents Underwriters have a contractual relationship with respect to the Offering, if any, agrees with the Agents Underwriters to comply with the covenants and obligations given by the Agents herein.Underwriters herein or to which the Underwriters are subject.
(cd) The Company represents and warrants to, and covenants and agrees with, the Agents Underwriters that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable the Preliminary Prospectus and other related documents relating to the proposed distribution in the Qualifying Jurisdictions of the Offered Units in accordance with the Canadian Securities Laws, Laws and will the Company shall use its best reasonable efforts to obtain a Passport Decision Document receipt for the Final Preliminary Prospectus in order to qualify from the Shares for distribution in each Principal Regulator on its own behalf and on behalf of the Qualifying Provinces, as soon as possibleother Canadian Securities Regulators pursuant to the Passport System and NP 11-202 on the date of such filing, and in any event not shall obtain such receipt by no later than 2:00 p.m. (Vancouver time)/5:00 4:00 p.m. (Toronto time) on November 16April 18, 2012 2019;
(e) The Company shall use its reasonable efforts to promptly resolve all comments received of, or deficiencies raised by, the Canadian Securities Regulators with respect to the Preliminary Prospectus as soon as possible after receipt of such comments. The Company shall have prepared and filed the Final Prospectus and other related documents relating to the proposed distribution of the Offered Units in the Qualifying Jurisdictions in accordance with the Canadian Securities Laws and the Company shall obtain a receipt for the Final Prospectus from the Principal Regulator on its own behalf and on behalf of the other Canadian Securities Regulators pursuant to the Passport System and NP 11-202 by 4:00 pm (Toronto time) on May 8, 2019 (or such other time and/or later date as the Company and Eight Capital (on behalf of the Lead Agent Underwriters) may mutually agree).
(f) and until Until the day earlier of the date on which which: (i) the distribution of the Shares Offered Units is completed; or (ii) the Underwriters have exercised their termination rights pursuant to Section 10, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable the Canadian Securities Laws to continue to qualify the distribution of the Shares Offered Units or, in the event that the Offered Units have, for any reason, ceased so to qualify, to so qualify again the Offered Units, as applicable, for distribution in the Qualifying Provinces.
(d) Jurisdictions. The Agents Underwriters shall, upon the Company obtaining a Passport Decision Document receipt for the Final Prospectus from or on behalf of each of the Principal RegulatorCanadian Securities Regulators, and upon receiving sufficient copies of the Final Prospectus from the Company in accordance with subsection 3(d)(ii), deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces Jurisdictions who are to acquire the SharesOffered Units.
(eg) Prior to the filing of the Preliminary Prospectus, the filing of the Final Prospectus and the Closing, the Company shall have permitted the Agents Underwriters to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents Underwriters to conduct any due diligence investigations which they reasonably require in order to fulfill fulfil their obligations as agents underwriters under applicable Canadian Securities Laws and in order to enable the Agents Underwriters to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Underwriting Agreement
The Offering. (a) The sale of the Shares Offered Units to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms set out in the Prospectus and in this AgreementAgreement and in a manner that is in compliance with applicable Securities Laws. The Agents will use their best commercially reasonable efforts to arrange for Purchasers for the Shares Offered Units in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company Corporation and the Agents, acting reasonably, in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the SharesOffered Units.
(b) The Company Corporation agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the SharesOffered Units. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents, provided that no additional amount shall be payable by the Corporation in respect thereof. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein, including Schedule “A” hereto.
(c) The Company Corporation represents and warrants to, and covenants and agrees with, the Agents that the Company Corporation has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, System a Passport Decision Document in respect of the proposed distribution of the SharesOffered Units. The Company Corporation has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares Offered Units for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. 4:00 pm (Toronto time) on November 16December 13, 2012 2010 (or such other time and/or later date as the Company Corporation and the Lead Agent may agree) and until the day on which the distribution of the Shares Offered Units is completed, the Company Corporation will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares Offered Units in the Qualifying Provinces.
(d) The Agents shall, upon the Company Corporation obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the SharesOffered Units.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company Corporation shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
The Offering. (a) The sale of Company understands that, although the offer to purchase the Shares to is being made by the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon Underwriters as purchaser, the terms set out in the Prospectus and in this Agreement. The Agents Underwriters will use their best efforts endeavor to arrange for Substituted Purchasers for the Shares in one or more of the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon Canadian Jurisdictions, subject to acceptance by the Company and the AgentsCompany, acting reasonably, in connection of the Subscription Agreements, with the Offering; howevereffect that such Substituted Purchasers will be the initial purchasers of the applicable Shares. The Underwriters shall offer for sale and sell the Shares in accordance with the terms of this Agreement, it is understood on a private placement basis pursuant to exemptions from the prospectus requirements of Canadian Securities Laws and agreed that Regulation S under the Agents shall have no obligation to purchase the SharesAct.
(b) The Company agrees Underwriters acknowledge that, subject to the conditions contained in Section 9 hereof being satisfied and subject to the rights of the Underwriters contained in this Agreement, the Underwriters shall become obligated to purchase or cause to be purchased all of the Shares. To the extent that Substituted Purchasers purchase Shares at the Agents Closing, the Underwriters shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers not be obligated to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of Shares so purchased by such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents hereinSubstituted Purchasers.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that Neither the Company has prepared and filed nor the Preliminary Prospectus and has obtained pursuant Underwriters shall (i) provide to the Passport System, a Passport Decision Document in respect prospective purchasers of the proposed distribution Shares any document or other material that would constitute an offering memorandum or future oriented financial information within the meaning of Canadian Securities Laws, or (ii) engage in any form of general solicitation or general advertising in connection with the offer and sale of the Shares. The Company has prepared and will promptly, after including but not limited to, causing the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution sale of the Shares is completedto be advertised in any newspaper, the Company will promptly takemagazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television or telecommunications, including electronic display, or cause conduct any seminar or meeting relating to be taken, all additional steps the offer and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution sale of the Shares in the Qualifying Provinceswhose attendees have been invited by general solicitation or advertising.
(d) The Agents shallShares shall have attached to them, upon whether through the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy electronic deposit system of the Final Prospectus (together with Canadian Depository for Securities, an ownership statement issued under a direct registration system or other electronic book-entry system, or on certificates that may be issued, as applicable, any amendments thereto) legends as may be prescribed by the Canadian Depository for Securities in addition to all persons resident the legends set out in the Qualifying Provinces who are to acquire the SharesSubscription Agreements.
(e) Prior The Underwriters agree that all offers and sales of the Shares, by the Underwriters, prior to the filing expiration of the Preliminary Prospectus, applicable distribution compliance period specified in Regulation S under the Final Prospectus and Act shall be made in compliance with the Closing, the Company shall have permitted the Agents provisions of Rule 903 or Rule 904 under said Act; pursuant to review each registration of the Preliminary Prospectus and Shares under the Final Prospectus and shall allow Act; or pursuant to an exemption from the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable registration requirements of the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by themAct.
Appears in 1 contract
The Offering. (a) The sale of the Shares Offered Securities to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement.
(b) Each Purchaser resident in a Qualifying Province shall purchase the Offered Securities pursuant to the Final Prospectus. The Agents will use their best efforts to arrange for Purchasers for Each other Purchaser shall purchase in accordance with such procedures as the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company Corporation and the AgentsUnderwriters may mutually agree, acting reasonably, in order to fully comply with Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including the filing of any notices or forms, on a timely basis in connection with the Offering; however, it is understood and agreed distribution of the Offered Securities so that the Agents shall have no obligation distribution of the Offered Securities in such Selling Jurisdictions outside of Canada may lawfully occur so as not to purchase require registration or filing of a prospectus with respect thereto or compliance by the SharesCorporation with regulatory requirements (including any continuous disclosure obligations) under the laws of, or subject the Corporation (or any directors, officers or employees) to any inquiry, investigation or proceedings of any Securities Regulator, stock exchange or other authority under applicable securities laws in such Selling Jurisdictions outside of Canada.
(bc) The Company Corporation agrees that the Agents Underwriters shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the SharesOffered Securities. The Agents have Underwriters has the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the AgentsUnderwriters, which compensation shall be at the Underwriters’ sole expense. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents Underwriters and appoints the Agents Underwriters as trustees trustee of such rights and benefits for such Selling Firms, and the Agents Underwriters hereby accept accepts such trust and agree agrees to hold such rights and benefits for and on behalf of such Selling Firms. The Agents Underwriters shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b3(c) or with whom the Agents have Underwriters has a contractual relationship with respect to the Offering, if any, agrees with the Agents Underwriters to comply with the covenants and obligations given by the Agents Underwriters herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shallUnderwriters, upon acting through their U.S. Affiliates in compliance with Schedule “A” hereto, may offer and re-sell the Company obtaining a Passport Decision Document Units in the United States or to, or for the Final Prospectus account or benefit of, U.S. Persons, that are Qualified Institutional Buyers in accordance with Rule 144A, or offer and sell the Units to Accredited Investors in accordance with Rule 506 of Regulation D, and in each case in compliance with the provisions of Schedule “A” hereof. With respect to Units sold in the United States or to, or for the account or benefit of, U.S. Persons that are Qualified Institutional Buyers in compliance with Rule 144A, the Underwriters, or their U.S. Affiliates, shall purchase such Units from the Principal RegulatorCorporation for resale in compliance with Rule 144A. With respect to Units sold in the United States or to, deliver one copy or for the account or benefit of, U.S. Persons that are Accredited Investors in accordance with Rule 506 of Regulation D, although this Agreement is presented on behalf of the Final Prospectus (together with any amendments thereto) to Underwriters as purchasers of the Units, all persons resident Units sold in the Qualifying Provinces who are United States or to, or for the account or benefit of, U.S. Persons, if any, in accordance with Rule 506 of Regulation D shall be sold directly to acquire such persons as Substituted Purchasers by the Shares.
(e) Prior Corporation in compliance with Schedule “A” hereto. To the extent that Accredited Investors purchase Units as Substituted Purchasers on the Closing Date, the obligations of the Underwriters to purchase Units shall be reduced by the number of Units purchased from the Corporation by such Substituted Purchasers; provided, however, that the fee payable to the filing Underwriters pursuant to this Agreement shall be payable in respect of any purchases of Units made in accordance with Rule 506 of Regulation D by Substituted Purchasers. Any reference in this Agreement to “the Preliminary Prospectus, the Final Prospectus and the Closing, the Company purchasers” of Units shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required be taken to be executed by thema reference to the Underwriters, as the initial committed purchaser, and to the Substituted Purchasers, if any.
Appears in 1 contract
Samples: Underwriting Agreement
The Offering.
(a) The sale of the Shares to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company and the Agents, acting reasonably, in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares.
(b) The Company Corporation agrees that the Agents shall will have the right to invite one or more investment registered dealers or brokers (each, a “Selling Firm”) as agents to form a selling group to participate in assist with the soliciting sale of offers to purchase the SharesOffered Securities. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of group, such Selling Firms) and compensation to be payable by the Agents. The Company grants all of the rights Agents will, and benefits of this Agreement to will cause any Selling Firm so appointed by to agree to, comply with Securities Laws in connection with the distribution of the Debenture Units and will offer the Debenture Units for sale to the public directly and through Selling Firms upon the terms and conditions set out in the Final Prospectus and this Agreement. The Agents will: (i) use all commercially reasonable efforts to complete and appoints cause each Selling Firm to complete the Agents distribution of the Offered Securities as trustees soon as reasonably practicable; and (ii) as soon as practicable after the completion of such rights the distribution of the Offered Securities, notify the Corporation thereof, on their behalf and benefits for such on behalf of the Selling Firms, and provide the Agents hereby accept such trust Corporation with a breakdown of the number of Offered Securities distributed in the Qualifying Jurisdictions and agree any other jurisdictions subject to hold such rights and benefits for and on behalf of such Selling Firms. Section 3(b)(ii).
(b) The Agents shall ensure that and any Selling Firm appointed pursuant will be entitled to offer and sell the provisions Offered Securities only in: (i) the Qualifying Jurisdictions; and (ii) with the prior written consent of this subsection 3(b) or the Corporation, in jurisdictions other than the Qualifying Jurisdictions, in accordance with whom any applicable securities and other laws in the jurisdictions in which the Agents have a contractual relationship with respect to and/or Selling Firms offer the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein.Offered Securities.
(c) The Company represents Corporation will forthwith: (i) prepare and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces and other documents with the Canadian Securities Regulators as required under applicable Securities Laws, ;
(ii) elect to use the Passport System and will use its best efforts to designate the ASC as the principal regulator thereunder; and (iii) obtain a Passport Decision Document receipt for the Final Prospectus in order from the Principal Regulator on its own behalf and on behalf of the other Canadian Securities Regulators under the Passport System, which will also evidence that a receipt has been issued or is deemed to have been issued for the Final Prospectus by each of the Canadian Securities Regulators of the other Qualifying Jurisdictions and that the Corporation otherwise fulfilled all of the legal requirements to qualify the Shares Offered Securities for distribution to the public in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. Jurisdictions through the Agents or Selling Firms.
(Vancouver time)/5:00 p.m. (Toronto timed) on November 16, 2012 (or such other time and/or later date as Until the Company and the Lead Agent may agree) and until the day on which completion of the distribution of the Shares is completedOffered Securities, the Company Corporation will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws in the Qualifying Jurisdictions to continue to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the SharesOffered Securities.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall Corporation will have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall will allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents Agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
(f) Closing is subject to the Minimum Offering being obtained. All funds received by the Agent for subscriptions will be held in trust by the Agents until the Minimum Offering has been obtained or will be returned to the subscribers without interest or deduction if the Minimum Offering is not obtained within the period required to complete the Offering pursuant to Securities Laws, unless the subscribers have otherwise instructed the Agents.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale of the Shares to the Purchasers Offering shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms and conditions set out in the Prospectus and in this Agreement.
(b) Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Units pursuant to the Final Prospectus. The Agents will use their best efforts to arrange for Purchasers for Each other Substituted Purchaser shall purchase the Shares Offered Units in accordance with such procedures as the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company Corporation and the AgentsUnderwriters may mutually agree, acting reasonably, in order to fully comply with applicable Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including as to the filing of any notices or forms, on a timely basis in connection with the Offering; however, it is understood and agreed distribution of the Offered Units so that the Agents shall have no obligation distribution of the Offered Units in the Selling Jurisdictions outside of Canada and the United States may lawfully occur so as not to purchase require registration or filing of a prospectus with respect thereto or compliance by the SharesCorporation with regulatory requirements (including any continuous disclosure obligations), or subject the Corporation (or any of its directors, officers or employees) to any inquiry, investigation or proceeding of any securities regulatory authority, stock exchange or other authority, under applicable Securities Laws in such Selling Jurisdictions outside of Canada and the United States.
(bc) The Company Corporation agrees that the Agents Underwriters shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group (each a “Selling Firm” and together, the “Selling Group”) to participate in the soliciting of offers to purchase the SharesOffered Units. The Agents Underwriters shall have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) Group and the AgentsUnderwriters. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed engaged by the Agents Underwriters and appoints the Agents Underwriters as trustees of such rights and benefits for such Selling FirmsFirm, and the Agents Underwriters hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling FirmsFirm. The Agents shall ensure that any Any Underwriter who engages a Selling Firm appointed pursuant to the provisions of this subsection 3(bSection 3(c) or with whom the Agents have a contractual relationship with respect shall use its commercially reasonable efforts to the Offering, if any, ensure such Selling Firm agrees with the Agents Underwriters to comply with the covenants and obligations given by the Agents herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.Underwriters herein.
Appears in 1 contract
Samples: Underwriting Agreement
The Offering. (a) The sale of the Offered Shares to the Purchasers shall be effected in a manner that is in compliance with applicable Canadian Securities Laws and U.S. Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Offered Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company Corporation and the Agents, acting reasonably, in connection with the Offering; provided, however, that it is understood and agreed that the Agents shall have no obligation to purchase any of the Offered Shares.
(b) The Company Corporation agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Offered Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of group, such Selling Firms) and compensation to be payable by the Agents. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein.
(c) The Company Corporation represents and warrants to, and covenants and agrees with, the Agents that the Company Corporation has prepared and filed the Preliminary Prospectus and the Amended and Restated Preliminary Prospectus with the Canadian Securities Commissions in each of the Qualifying Provinces under applicable Canadian Securities Laws and has obtained obtained, pursuant to the Passport SystemSystem and NP 11-202, a Passport Decision Document in receipt therefor from each of the Canadian Securities Commissions with respect of to the proposed distribution of the Offered Shares. The Company Corporation has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators Commissions under applicable Canadian Securities Laws, and will use its best efforts to obtain a receipt under the Passport Decision Document System and NP 11-202 for the Final Prospectus by or on behalf of each of the Canadian Securities Commissions in order to qualify the Offered Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 5:00 p.m. (Vancouver time)/5:00 p.m. (Toronto timeEST) on November 1614, 2012 2017 (or such other time and/or later date as the Company Corporation and the Lead Agent Agents may agree) and until the day on which the distribution of the Offered Shares is completed, the Company Corporation will promptly take, or cause to be taken, to the satisfaction of the Agents, acting reasonably, all additional reasonable steps and proceedings that may from time to time be required under applicable Canadian Securities Laws to qualify the distribution of the Offered Shares in the Qualifying ProvincesProvinces through the Agents or their respective affiliates or any other investment dealers or brokers registered in such jurisdictions as contemplated therein.
(d) The Agents shall, upon the Company Corporation obtaining a Passport Decision Document receipt for the Final Prospectus from or on behalf of each of the Principal RegulatorCanadian Securities Commissions, and upon receiving sufficient copies of the Final Prospectus from the Corporation in accordance with subsection 7(e), deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons Persons resident in the Qualifying Provinces who are to acquire the Offered Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus and the Closingany Supplementary Material, the Company Corporation shall have permitted allow the Agents to review each participate fully in the preparation of the Preliminary Prospectus and the Final Prospectus such documents and shall allow the Agents to conduct any all due diligence investigations which they the Agents may reasonably require in order to fulfill their obligations as agents under applicable Securities Laws Agents and in order to enable the Agents responsibly to responsibly execute the any certificate in the Preliminary Prospectus and the Final Prospectus related to such documents required to be executed by themthem under applicable Canadian Securities Laws. Up to the later of the Closing Date and the date of completion of the distribution of the Offered Shares, the Corporation shall allow each of the Agents to conduct any due diligence investigations that any of them reasonably requires to confirm as at any date that it continues to have reasonable grounds for the belief that the Offering Documents do not contain a misrepresentation as at such date or as at the date of such Offering Documents or, for purposes of U.S. Securities Laws, do not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading as at such date or as at the date of such Offering Documents.
(f) During the distribution of the Offered Shares:
(i) the Corporation shall prepare, in consultation with the Lead Agent, and approve in writing, prior to such time any Marketing Materials are provided to potential investors of the Offered Shares, a template version of any Marketing Materials reasonably requested to be provided by the Agents to any such potential investor, such Marketing Materials to comply with Canadian Securities Laws and to be acceptable in form and substance to the Agents, acting reasonably;
(ii) the Lead Agent shall, on behalf of the Agents, as contemplated by Canadian Securities Laws, approve a template version of any such Marketing Materials in writing prior to the time such Marketing Materials are provided to potential investors of the Offered Shares;
(iii) the Corporation shall file a template version of any Marketing Materials on SEDAR as soon as reasonably practicable after such Marketing Materials are so approved in writing by the Corporation and the Lead Agent and, in any event, on or before the day the Marketing Materials are first provided to any potential investor in Offered Shares, and any comparables (as defined in NI 41-101) shall be removed from the template version in accordance with NI 44-101 prior to filing such on SEDAR (provided that if any such comparables are removed, the Corporation shall deliver a complete template version of any such Marketing Materials to the Securities Commissions), and the Corporation shall provide a copy of such filed template version to the Agents as soon as practicable following such filing; and
(iv) following the approvals and filings set forth in Sections 3(f)(i) to 3(f)(iii) above, the Agents may provide a limited-use version of such Marketing Materials to potential investors of the Offered Shares in accordance with Canadian Securities Laws.
(g) The Corporation and the Agents, on a several basis, covenant and agree, during the distribution of the Offered Shares,:
(i) not to provide any potential investor of Offered Shares with any Marketing Materials unless a template version of such materials has been filed by the Corporation with the Securities Commissions on or before the day such Marketing Materials are first provided to any potential investor of the Offered Shares; and
(ii) not to provide any potential investor with any materials or information in relation to the distribution of the Offered Shares or the Corporation, other than: (A) such Marketing Materials that have been approved and filed in accordance with Section 3(f); and (B) the Prospectus.
(h) Each Purchaser who is resident in a Qualifying Province shall purchase pursuant to the Prospectus. Each other Purchaser not resident in a Qualifying Province shall purchase only on a private placement basis in accordance with such procedures as the Corporation and the Agents may mutually agree, acting reasonably, in order to fully comply with applicable Laws and the terms of this Agreement (Section 4(b) with respect to offers and sales in jurisdictions other than the Qualifying Provinces and including Schedule “A” hereto with respect to offers and sales in the United States). The Corporation hereby agrees to ensure compliance by the Corporation with all applicable Canadian Securities Laws on a timely basis in connection with the distribution of the Offered Shares to Purchasers resident in the Qualifying Provinces and to take or cause to be taken all steps and proceedings required under U.S. Securities Laws to offer and sell the Offered Shares in accordance with Schedule “A” hereto provided the Agents comply with their obligations hereunder. The Corporation also agrees to file within the periods stipulated under applicable Laws and at the Corporation’s expense all private placement forms required to be filed by the Corporation in connection with the Offering and pay all filing fees required to be paid in connection therewith so that the distribution of the Offered Shares outside of Canada may lawfully occur without the necessity of filing a prospectus or any similar document under the applicable Laws outside of Canada.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale of the Shares Offered Securities to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms and conditions set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares Units in the Qualifying Provinces Jurisdictions and in those jurisdictions Selling Jurisdictions outside of Canada as may be agreed upon by the Company Agents and the AgentsCorporation, acting reasonably, in connection with the Offering; provided, however, it is understood and agreed that the Agents shall have are under no obligation to purchase any of the SharesUnits.
(b) Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Securities pursuant to the Final Prospectus. Each Purchaser in the United States shall purchase the Offered Securities pursuant to the U.S. Placement Memorandum and in accordance with Schedule “A” to this Agreement. Each other Purchaser shall purchase the Offered Securities in accordance with such procedures as the Corporation and the Agents may mutually agree, acting reasonably, in order to fully comply with applicable Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including as to the filing of any notices or forms, on a timely basis in connection with the distribution of the Offered Securities so that the distribution of the Offered Securities in the Selling Jurisdictions outside of Canada and the United States may lawfully occur so as not to require registration or filing of a prospectus with respect thereto or compliance by the Corporation with regulatory requirements (including any continuous disclosure obligations) under the laws of, or subject the Corporation (or any of its directors, officers or employees) to any inquiry, investigation or proceeding of any securities regulatory authority, stock exchange or other authority under applicable Securities Laws in, such Selling Jurisdictions outside of Canada and the United States.
(c) The Company Corporation agrees that the Agents shall have the right to invite one or more investment additional registered dealers (each, a “Selling FirmFirms”) acceptable to the Corporation to form a selling group to participate in the soliciting of offers to purchase the SharesOffered Securities. The Agents shall have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents Lead Agent as trustees trustee of such rights and benefits for such Selling Firms, and the Agents Lead Agent hereby accept accepts such trust and agree agrees to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall use their commercially reasonable efforts to ensure that any such Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Agency Agreement
The Offering. The Issuer Arkanova Energy Corporation (the “Issuer”). Issue Price US$0.10 per Share Offering There is no minimum or maximum offering. Selling Jurisdictions The United States or offshore (the “Selling Jurisdictions”). Exemptions The offering will be made in accordance with the following exemptions: (a) the Accredited Investor exemption as provided by Regulation D promulgated under the 1933 Act; and (b) such other exemptions as may be available the securities laws of the Selling Jurisdictions. Resale restrictions and legends The sale Subscriber acknowledges that any resale of any of the Shares will be subject to resale restrictions contained in the securities legislation applicable to the Purchasers shall Subscriber or proposed transferee. The Subscriber acknowledges that none of the Shares have been registered under the 1933 Act or the securities laws of any state of the United States. The Securities may not be effected in a manner that is in compliance with applicable Securities Laws and upon the terms set out offered or sold in the Prospectus United States unless registered in accordance with federal securities laws and in this Agreementall applicable state securities laws or exemptions from such registration requirements are available. The Agents will use their best efforts to arrange for Purchasers for Subscriber acknowledges that the certificates representing the Shares in will bear the Qualifying Provinces following legends: “THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.” The Subscriber and in those jurisdictions outside of Canada as any Beneficial Purchaser are advised to consult with their own legal counsel or advisors to determine the resale restrictions that may be agreed upon applicable to them. Closing Date Payment for, and delivery of the Shares, is scheduled to occur on such date as determined by the Company and in its sole discretion (the Agents, acting reasonably, in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares“Closing Date”).
(b) The Company agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Arkanova Energy Corp.)
The Offering. (a) The 2.1 Subject to the terms and conditions of this Agreement, the Agents shall offer for sale the Flow-Through Shares in the Canadian Selling Jurisdictions on a commercially reasonable agency basis in compliance with all Applicable Securities Laws pursuant to the LIFE such that the offer and sale of the Flow-Through Shares does not obligate the Company to file a prospectus, a registration statement or other offering document or deliver an offering memorandum or other offering document under Applicable Securities Laws, other than the Purchasers shall Offering Document.
2.2 The parties to this Agreement acknowledge that the Offered Securities have not been and will not be effected in a manner that is in compliance with applicable registered under the U.S. Securities Laws Act and upon the terms set out may not be offered or sold in the Prospectus United States except pursuant to available exemptions from the registration requirements of the U.S. Securities Act and in this Agreementsimilar exemptions under applicable securities laws of any state of the United States. The parties agree that (i) the Agents will use their best efforts to not arrange for Initial Purchasers for of the Flow-Through Shares in the Qualifying Provinces United States, and (ii) any offer to purchase any Resale Shares to investors in those jurisdictions outside of Canada as may the United States will be agreed upon made by the Company and the Agents, acting reasonablythrough their respective U.S. Affiliates, in accordance with this Agreement, on a private- placement basis to "accredited investors" (as defined in Rule 501(a) of Regulation D under the U.S. Securities Act) in the United States, it being understood and agreed that such sales do not trigger: (i) any obligation to prepare and file a prospectus, offering memorandum, registration statement or similar disclosure documents; or (ii) any registration or other obligation on the part of the Company including, but not limited to, any continuing obligation in that jurisdiction.
2.3 The Company hereby agrees to comply with all Applicable Securities Laws on a timely basis in connection with the Offering and undertakes to file, or cause to be filed, within the periods stipulated under Applicable Securities Laws, all forms, documents or undertakings required to be filed by the Company in connection with the issue and sale of the Offered Securities so that the distribution of the Offered Securities may lawfully occur without the necessity of filing a prospectus, a registration statement or other offering document with any Commission in the Selling Jurisdictions, and the Agents agree to assist the Company in all reasonable respects to secure compliance with all regulatory requirements in connection with the Offering; however, it is understood and agreed that . All fees payable in connection with such filings shall be paid by the Company.
2.4 Neither the Company nor the Agents shall have no obligation shall: (i) provide to purchase the Shares.
(b) The Company agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members prospective purchasers of the selling group (comprised Offered Securities any document or other material that would constitute an offering memorandum or "future-oriented financial information" within the meaning of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document except for the Final Prospectus Offering Document; or (ii) engage in order to qualify any form of general solicitation or general advertising in connection with the Shares for distribution in each offer and sale of the Qualifying ProvincesOffered Securities, as soon as possibleincluding but not limited to, and causing the sale of the Offered Securities to be advertised in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16newspaper, 2012 (magazine, printed public media, printed media or such other time and/or later date as similar medium of general and regular paid circulation, broadcast over radio, television or telecommunications, including electronic display, or conduct any seminar or meeting relating to the Company offer and the Lead Agent may agree) and until the day on which the distribution sale of the Shares is completed, the Company will promptly take, Offered Securities whose attendees have been invited by general solicitation or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provincesadvertising.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
The Offering. (a) The sale of the Shares Offered Securities to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms and conditions set out in the Prospectus and in this Agreement. The Agents Agent will use their its best efforts to arrange for Purchasers for the Shares Units in the Qualifying Provinces and Jurisdictions an in those jurisdictions Selling Jurisdictions outside of Canada as may be agreed upon by the Company Agent and the AgentsCorporation, acting reasonably, in connection with the Offering; provided, however, it is understood and agreed that the Agents shall have Agent is under no obligation to purchase any of the SharesUnits.
(b) Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Securities pursuant to the Final Prospectus. Each Purchaser in the United States shall purchase the Offered Securities pursuant to the U.S. Placement Memorandum and in accordance with Schedule “A” to this Agreement. Each other Purchaser shall purchase the Offered Securities in accordance with such procedures as the Corporation and the Agent may mutually agree, acting reasonably, in order to fully comply with applicable Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including as to the filing of any notices or forms, on a timely basis in connection with the distribution of the Offered Securities so that the distribution of the Offered Securities in the Selling Jurisdictions outside of Canada and the United States may lawfully occur so as not to require registration or filing of a prospectus with respect thereto or compliance by the Corporation with regulatory requirements (including any continuous disclosure obligations) under the laws of, or subject the Corporation (or any of its directors, officers or employees) to any inquiry, investigation or proceeding of any securities regulatory authority, stock exchange or other authority under applicable Securities Laws in, such Selling Jurisdictions outside of Canada and the United States.
(c) The Company Corporation agrees that the Agents Agent shall have the right to invite one or more investment dealers (each, a “Selling Firm”) Firms to form a selling group to participate in the soliciting of offers to purchase the SharesOffered Securities. The Agents Agent shall have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the AgentsAgent. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents Agent and appoints the Agents Agent as trustees trustee of such rights and benefits for such Selling Firms, and the Agents Agent hereby accept accepts such trust and agree agrees to hold such rights and benefits for and on behalf of such Selling Firms. The Agents Agent shall use its commercially reasonable efforts to ensure that any such Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents Agent to comply with the covenants and obligations given by the Agents Agent herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale Each purchaser who is resident in a Qualifying Jurisdiction shall purchase the Offered Units pursuant to the Final Prospectus. Each other purchaser not resident in a Qualifying Jurisdiction, or located outside of a Qualifying Jurisdiction, shall purchase Offered Units, which have been qualified by the Final Prospectus in Canada, only on a private placement basis under the applicable securities laws of the Shares to jurisdiction in which the Purchasers shall be effected purchaser is resident or located, in a manner that is in compliance accordance with applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada such procedures as may be agreed upon by the Company and the AgentsAgent may mutually agree, acting reasonably, in connection order to fully comply with Applicable Laws and the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Sharesterms of this Agreement.
(b) The Company hereby agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with all Applicable Securities Laws in the covenants Qualifying Jurisdictions on a timely basis in connection with the distribution of the Offered Units and obligations given the Company shall execute and file with the Securities Commissions all forms, notices and certificates relating to the Offering required to be filed pursuant to Applicable Securities Laws in the Qualifying Jurisdictions within the time required, and in the form prescribed, by Applicable Securities Laws in the Agents hereinQualifying Jurisdictions.
(c) The Company represents and warrants to, and covenants and agrees with, Agent shall use its “commercially reasonable efforts” to arrange for the Agents that purchase of the Company has prepared and filed Offered Units for sale:
(i) in the Preliminary Prospectus and has obtained pursuant Qualifying Jurisdictions and
(ii) subject to the Passport System, a Passport Decision Document in respect consent of the proposed distribution of the Shares. The Company has prepared and will promptlyCompany, after the execution and delivery of this Agreementacting reasonably, file the Final Prospectus in each such other jurisdictions outside of the Qualifying Provinces Jurisdictions and the United States where permitted by and in accordance with Applicable Securities Laws and the Canadian Securities Regulators under applicable Securities Lawssecurities laws of such other jurisdictions, and will use its best efforts to obtain a Passport Decision Document for provided that in the Final Prospectus in order to qualify the Shares for distribution in each case of jurisdictions other than the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the ClosingJurisdictions, the Company shall have permitted the Agents not be required to review each of the Preliminary Prospectus become registered or file a prospectus or registration statement or similar document in such jurisdictions and the Final Prospectus and shall allow the Agents Company will not be subject to conduct any due diligence investigations which they reasonably require continuous disclosure requirements in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by themsuch jurisdiction.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale of the Shares Offered Units to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms and conditions set out in the Prospectus and in this Agreement.
(b) Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Units pursuant to the Final Prospectus. The Agents will use their best efforts to arrange for Purchasers Each Purchaser who is, or is purchasing for the Shares account or benefit of, a U.S. Person or a person in the Qualifying Provinces United States shall purchase the Offered Units pursuant to the U.S. Placement Memorandum and in those jurisdictions outside of Canada accordance with Schedule “C” to this Agreement. Each other Purchaser shall purchase the Offered Units in accordance with such procedures as may be agreed upon by the Company Corporation and the AgentsAgents may mutually agree, acting reasonably, in order to fully comply with applicable Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including as to the filing of any notices or forms, on a timely basis in connection with the Offering; however, it is understood and agreed distribution of the Offered Units so that the Agents shall have no obligation distribution of the Offered Units in the Selling Jurisdictions outside of Canada and the United States may lawfully occur so as not to purchase require registration or filing of a prospectus or similar document with respect thereto or compliance by the SharesCorporation with regulatory requirements (including any continuous disclosure obligations), or subject the Corporation (or any of its directors, officers or employees) to any inquiry, investigation or proceeding of any securities regulatory authority, stock exchange or other authority, under applicable Securities Laws in such Selling Jurisdictions outside of Canada and the United States.
(bc) The Company Corporation agrees that the Agents shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group (each a “Selling Firm” and together, the “Selling Group”) to participate in the soliciting of offers to purchase the SharesOffered Units. The Agents shall have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) Group and the Agents. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling FirmsFirm, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling FirmsFirm. The Agents shall ensure that any Any Agent who appoints a Selling Firm appointed pursuant to the provisions of this subsection 3(bSection 3(c) or with whom the Agents have a contractual relationship with respect shall use its commercially reasonable efforts to the Offering, if any, ensure such Selling Firm agrees with the Agents to comply with the covenants and obligations given by the Agents herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale of the Shares Offered Securities to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms and conditions set out in the Prospectus and in this Agreement. The Agents Agent will use their its best efforts to arrange for Purchasers for the Shares Units in the Qualifying Provinces Jurisdictions and in those jurisdictions Selling Jurisdictions outside of Canada as may be agreed upon by the Company Agent and the AgentsCorporation, acting reasonably, in connection with the Offering; provided, however, it is understood and agreed that the Agents shall have Agent is under no obligation to purchase any of the SharesUnits.
(b) Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Securities pursuant to the Final Prospectus. Each other Purchaser shall purchase the Offered Securities in accordance with such procedures as the Corporation and the Agent may mutually agree, acting reasonably, in order to fully comply with applicable Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including as to the filing of any notices or forms, on a timely basis in connection with the distribution of the Offered Securities so that the distribution of the Offered Securities in the Selling Jurisdictions outside of Canada and the United States may lawfully occur so as not to require registration or filing of a prospectus with respect thereto or compliance by the Corporation with regulatory requirements (including any continuous disclosure obligations) under the laws of, or subject the Corporation (or any of its directors, officers or employees) to any inquiry, investigation or proceeding of any securities regulatory authority, stock exchange or other authority under applicable Securities Laws in, such Selling Jurisdictions outside of Canada and the United States.
(c) The Company Corporation agrees that the Agents Agent shall have the right to invite one or more investment dealers (each, a “Selling Firm”) Firms to form a selling group to participate in the soliciting of offers to purchase the SharesOffered Securities. The Agents Agent shall have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the AgentsAgent. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents Agent and appoints the Agents Agent as trustees trustee of such rights and benefits for such Selling Firms, and the Agents Agent hereby accept accepts such trust and agree agrees to hold such rights and benefits for and on behalf of such Selling Firms. The Agents Agent shall use its commercially reasonable efforts to ensure that any such Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents Agent to comply with the covenants and obligations given by the Agents Agent herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Agency Agreement
The Offering. (a) The sale of Company understands that, although the offer to purchase the Shares to is being made by the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon Underwriters as purchaser, the terms set out in the Prospectus and in this Agreement. The Agents Underwriters will use their best efforts endeavor to arrange for Substituted Purchasers for the Shares in one or more of the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon Canadian Jurisdictions, subject to acceptance by the Company and the AgentsCompany, acting reasonably, in connection of the Subscription Agreements, with the Offering; howevereffect that such Substituted Purchasers will be the initial purchasers of the applicable Shares. The Underwriters shall offer for sale and sell the Shares in accordance with the terms of this Agreement, it is understood on a private placement basis pursuant to exemptions from the prospectus requirements of Canadian Securities Laws and agreed that Regulation S under the Agents shall have no obligation to purchase the SharesAct.
(b) The Company agrees Underwriters acknowledge that, subject to the conditions contained in Section 9 hereof being satisfied and subject to the rights of the Underwriters contained in this Agreement, the Underwriters shall become obligated to purchase or cause to be purchased all of the Shares. To the extent that Substituted Purchasers purchase Shares at the Agents Closing, the Underwriters shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers not be obligated to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of Shares so purchased by such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents hereinSubstituted Purchasers.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that Neither the Company has prepared and filed nor the Preliminary Prospectus and has obtained pursuant Underwriters shall (i) provide to the Passport System, a Passport Decision Document in respect prospective purchasers of the proposed distribution Shares any document or other material that would constitute an offering memorandum or future oriented financial information within the meaning of Canadian Securities Laws, or (ii) engage in any form of general solicitation or general advertising in connection with the offer and sale of the Shares. The Company has prepared and will promptly, after including but not limited to, causing the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution sale of the Shares is completedto be advertised in any newspaper, the Company will promptly takemagazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television or telecommunications, including electronic display, or cause conduct any seminar or meeting relating to be taken, all additional steps the offer and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution sale of the Shares in the Qualifying Provinceswhose attendees have been invited by general solicitation or advertising.
(d) The Agents shallShares shall have attached to them, upon whether through the Company obtaining electronic deposit system of CDS, an ownership statement issued under a Passport Decision Document for direct registration system or other electronic book-entry system, or on certificates that may be issued, as applicable, any legends as may be prescribed by CDS in addition to the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident legends set out in the Qualifying Provinces who are to acquire the SharesSubscription Agreements.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
The Offering. (a) The sale of Each Purchaser resident in a Qualifying Jurisdiction will purchase the Shares Offered Securities pursuant to the Purchasers shall be effected Final Prospectus. Each other Purchaser participating in the Offering not resident in a manner that is in compliance with Qualifying Jurisdiction, or located outside of a Qualifying Jurisdiction, shall purchase Offered Securities, only on a private placement basis under the applicable Securities Laws and upon of the terms set out jurisdiction in which the Prospectus and Purchaser is resident or located, in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada accordance with such procedures as may be agreed upon by the Company and the AgentsUnderwriters may mutually agree, acting reasonably, in order to fully comply with applicable Laws and the terms of this Agreement (including Schedule “A” to this Agreement with respect to offers and sales of Offered Securities in the United States). The Company hereby agrees to secure compliance with all Securities Laws of the Qualifying Jurisdictions on a timely basis in connection with the distribution of the Offered Securities and the Company shall execute and file with the Canadian Securities Regulators all forms, notices and certificates relating to the Offering required to be filed pursuant to applicable Securities Laws in the Qualifying Jurisdictions within the time required, and in the form prescribed, by applicable Securities Laws in the Qualifying Jurisdictions. The Company also agrees to file within the periods stipulated under applicable Laws outside of Canada and at the Company’s expense all private placement forms required to be filed by the Company in connection with the Offering and pay all filing fees required to be paid in connection therewith so that the distribution of the Offered Securities outside of Canada may lawfully occur without the necessity of filing a prospectus or any similar document under the applicable Laws outside of Canada. The Underwriters agree to assist the Company in all reasonable respects to secure compliance with all regulatory requirements in connection with the Offering; however, it is understood and agreed that the Agents shall have no obligation to purchase the Shares.
(b) The Company understands that although this Agreement is presented on behalf of the Underwriters as Purchaser, the Underwriters may arrange for substituted purchasers (the “Substituted Purchasers”) for the Offered Securities. It is further understood that the Underwriters agree to purchase or cause to be purchased the Units, and if the Over-Allotment Option is exercised, the Additional Securities, as applicable, being issued by the Company and that this commitment is not subject to the Underwriters being able to arrange Substituted Purchasers. Each Substituted Purchaser will purchase Offered Securities at the respective Issue Price set forth in the paragraphs above, and to the extent that Substituted Purchasers purchase Offered Securities, the obligations of the Underwriters to do so will be reduced by the number of Offered Securities purchased by the Substituted Purchasers from the Company (but will not relieve the Underwriters from paying to the Company the Issue Price per Offered Security purchased by such Substituted Purchasers). Any reference in this Agreement hereafter to “Purchasers” will be taken to be a reference to the Underwriters, as the initial committed purchasers, and to the Substituted Purchasers, if any. Notwithstanding the foregoing all Offered Securities sold pursuant to Rule 144A will first be purchased by the Underwriters, acting as principal, and resold in transactions in accordance with Rule 144A.
(c) The Company agrees that the Agents shall Lead Underwriter will have the right to invite one or more investment registered dealers or brokers (each, a “Selling Firm”) as agents to form a selling group to participate in assist with the soliciting sale of offers to purchase the SharesOffered Securities. The Agents have Lead Underwriter has the exclusive right to control all compensation arrangements between the members of the selling group (comprised of group, such Selling Firms) and compensation to be payable by the AgentsLead Underwriter. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents Lead Underwriter and appoints the Agents Lead Underwriter as trustees of such rights and benefits for such Selling Firms, and the Agents Lead Underwriter hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that Lead Underwriter will, and will cause any Selling Firm appointed pursuant to agree to, comply with applicable Securities Laws in connection with the distribution of the Units and will offer the Units for sale to the provisions of public directly and through Selling Firms upon the terms and conditions set out in the Final Prospectus and this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents hereinAgreement.
(cd) The Company represents and warrants to, and covenants and agrees with, the Agents Underwriters that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after concurrently with the execution and delivery of this Agreement, file the Final Preliminary Prospectus and other related documents (including, without limitation, any Marketing Materials to be prepared in each respect of the Offering) relating to the proposed distribution in the Qualifying Provinces Jurisdictions of the Offered Securities in accordance with the Canadian Securities Regulators under applicable Securities Laws, Laws and will use the Company shall make its best efforts to obtain a receipt for the Preliminary Prospectus from the Principal Regulator on its own behalf and on behalf of the other Canadian Securities Regulators pursuant to the Passport Decision Document System and NP 11-202 by no later than 5:00 p.m. (Pacific time) on January 13, 2021.
(e) The Company shall promptly resolve all comments received of, or deficiencies raised by, the Canadian Securities Regulators with respect to the Preliminary Prospectus as soon as possible after receipt of such comments. On or before January 21, 2021 the Company shall have prepared and filed the Final Prospectus and other related documents (including any Marketing Materials prepared in respect of the Offering if not previously filed by the Company) relating to the proposed distribution of the Offered Securities in the Qualifying Jurisdictions in accordance with the Securities Laws and the Company shall obtain a receipt for the Final Prospectus in order to qualify from the Shares for distribution in each Principal Regulator on its own behalf and on behalf of the Qualifying Provinces, as soon as possible, other Canadian Securities Regulators pursuant to the Passport System and in any event not later than 2:00 p.m. NP 11-202 by 5:00 pm (Vancouver time)/5:00 p.m. (Toronto Pacific time) on November 16January 21, 2012 2021 (or such other time and/or later date as the Company and the Lead Agent Underwriter may agree).
(f) and until Until the day earlier of the date on which which: (i) the distribution of the Shares Offered Securities is completed; or
(ii) the Underwriters have exercised their termination rights pursuant to Sections 13 and 14, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable the Securities Laws to continue to qualify the distribution of the Shares Offered Securities or, in the event that the Offered Securities have, for any reason, ceased so to qualify, to so qualify again the Offered Securities, as applicable, for distribution in the Qualifying Provinces.
(d) Jurisdictions. The Agents shallUnderwriters will, upon the Company obtaining a Passport Decision Document for filing the Final Prospectus, and upon receiving sufficient copies of the Final Prospectus from the Principal RegulatorCompany in accordance with subsection 5(d)(i), deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons Persons resident in the Qualifying Provinces Jurisdictions who are to acquire the SharesOffered Securities.
(eg) Prior to the filing of the Preliminary Prospectus, the filing of the Final Prospectus and the Closing, the Company shall will have permitted the Agents Underwriters, their legal counsel and consultants will be provided with timely access to review all information required to permit them to conduct a full due diligence investigation of the business and affairs of the Company and its subsidiaries and the business conducted by the Company and its subsidiaries before the Closing of the Offering. Without limiting the foregoing, the Underwriters shall be permitted to conduct all due diligence that they may, in their sole discretion, require in order to fulfil their obligations as underwriters and to execute the certificates required of them in each of the Preliminary Prospectus Prospectus, and the Final Prospectus Prospectus, and shall allow in that regard the Agents Company will make available to conduct any the Underwriters, their legal counsel and consultants, on a timely basis, all corporate and operating records, all legal information, material Contracts, technical reports, Financial Information, budgets, and other relevant information necessary in order to complete the due diligence investigation of the business, properties and affairs of the Company and its subsidiaries as well as of their respective directors, officers, and employees and the Company will make available senior management, the chair of the audit committee, legal counsel to the Company and other applicable experts to participate in one or more due diligence sessions to be held prior to the Closing Date. All information furnished to the Underwriters and their counsel in connection with the due diligence investigations which they of the Underwriters will be treated by the Underwriters, their legal counsel and consultants as confidential and will only be used in connection with the Underwriters’ engagement hereunder.
(h) The Underwriters may retain the services of independent consultants, mutually acceptable to both the Lead Underwriter and the Company (such acceptance not to be unreasonably withheld or delayed). To complete its due diligence investigations, senior management of the Company will make themselves available to provide such assistance in marketing the Offering as the Lead Underwriter may reasonably require request. Each of the Offering Documents shall be in order form and substance satisfactory to fulfill their obligations as agents under the Lead Underwriter and in compliance with applicable Securities Laws of the Qualifying Jurisdictions.
(i) In carrying out their responsibilities under this Agreement, the Underwriters will necessarily rely on information prepared or supplied by the Company. The Underwriters will apply reasonable standards of diligence to their due diligence inquiries. However, the Underwriters will be entitled to reasonably rely on and assume no obligation to verify the accuracy or completeness of such information and under no circumstances will the Underwriters be liable to the Company or any security holder for any damages arising out of the inaccuracy or incompleteness of such information. The Company maintains sole responsibility for the accuracy and completeness of the Offering Documents, all Documents Incorporated by Reference, and any other disclosure document to be prepared in order connection with the Offering, except any portions thereof that are provided by the Underwriters.
(j) If the Company makes information concerning the Company or the Offering available to enable third parties, the Agents Company will bear the sole responsibility for the accuracy and completeness of the information provided to responsibly execute third parties. The Company represents and warrants to the certificate Lead Underwriter that: (i) the information so provided to third parties will be accurate and complete in all material respects and will not be misleading or omit to state any fact or information which would be material to parties considering the Preliminary Prospectus Offering, and (ii) all information and documentation concerning the Company and the Final Prospectus required Offering that is provided to the Lead Underwriter in connection with this Agreement will be executed by themaccurate and complete in all material respects and not misleading and will not omit to state any fact or information which would be material to a financial advisor and agent performing the services contemplated herein.
Appears in 1 contract
Samples: Underwriting Agreement
The Offering. The Company also agrees that the Placement Agent shall not have any liability (awhether direct or indirect, in contract or tort or otherwise) The sale of the Shares to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange Company for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company and the Agents, acting reasonably, or in connection with the Offeringengagement of the Placement Agent, (i) except as provided below with respect to the Placement Agent's obligations to indemnify to the Company; and (ii) where such loss has been judicially determined to be solely due to the Placement Agent's gross negligence or willful misconduct. These indemnification provisions shall be in addition to any liability which the Company may otherwise have to the Placement Agent or the persons indemnified below in this sentence and shall extend to the following: the Placement Agent, its affiliated entities, partners, employees, legal counsel, agents and controlling persons (within the meaning of the federal securities laws), and the officers, directors, employees, legal counsel, agents and controlling persons of any of them. All references to the Placement Agent in these indemnification provisions shall be understood to include any and all of the foregoing. If any action, suit, proceeding or investigation is commenced, as to which the Placement Agent proposes to demand indemnification, it shall notify the Company with reasonable promptness (provided, however, it is understood that any failure by the Placement Agent to notify the Company shall not relieve the Company from its obligations hereunder), and agreed that the Agents shall have no obligation to purchase the Shares.
(b) The Company agrees that the Agents shall have the right to invite assume the defense of such action. The Placement Agent shall have the right to retain counsel of its own choice to represent it, but the fees and expenses of such counsel shall be at its expense unless the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such action or the Company shall not have promptly employed counsel reasonably satisfactory to the Placement Agent to have charge of the defense of such action or the Placement Agent shall have reasonably concluded that there may be one or more investment dealers legal defenses available to it which are different from or additional to those available to the Company, in any of which events such fees and expenses shall be borne by the Company. Any such counsel of the Placement Agent shall, to the extent consistent with its professional responsibilities, cooperate with the Company and any counsel designated by the Company. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (each, a “Selling Firm”in addition to any local counsel) to form a selling group to participate separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members same jurisdiction arising out of the selling group (comprised of such Selling Firms) and the Agentssame general allegations or circumstances. The Company grants all shall not, without the prior written consent of the rights and benefits Placement Agent, settle or compromise any claim, or permit a default or consent to the entry of this Agreement to any Selling Firm so appointed judgment in respect thereof, unless such settlement, compromise or consent includes, as a unconditional term thereof, the giving by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant claimant to the provisions Placement Agent of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document an unconditional release from all liability in respect of the proposed distribution of the Sharessuch claim. The Company has prepared and will promptly, after the execution and delivery of Anything in this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior Section 13 to the filing contrary notwithstanding, an indemnifying party shall not be liable for any settlement of the Preliminary Prospectusany claim or action effected without its written consent; provided however, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by themthat such consent was not unreasonably withheld.
Appears in 1 contract
The Offering. (a) The sale of the Offered Shares to the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon the terms and conditions set out in the Prospectus and in this Agreement.
(b) Each Purchaser resident in a Qualifying Jurisdiction shall purchase the Offered Shares pursuant to the Prospectus. The Agents will use their best efforts Each Purchaser in the United States shall purchase the Offered Shares pursuant to arrange for Purchasers for the U.S. Private Placement Memorandum and in accordance with Schedule “A” to this Agreement. Each other Purchaser shall purchase the Offered Shares in accordance with such procedures as the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company Corporation and the AgentsUnderwriter may mutually agree, acting reasonably, in order to fully comply with applicable Securities Laws and the Corporation hereby agrees to comply with all Securities Laws, including as to the filing of any notices or forms, on a timely basis in connection with the Offering; however, it is understood and agreed distribution of the Offered Shares so that the Agents shall have no obligation distribution of the Offered Shares in the Selling Jurisdictions outside of Canada and the United States may lawfully occur so as not to purchase require registration or filing of a prospectus with respect thereto or compliance by the SharesCorporation with regulatory requirements (including any continuous disclosure obligations) under the laws of, or subject the Corporation (or any of its directors, officers or employees) to any inquiry, investigation or proceeding of any securities regulatory authority, stock exchange or other authority under applicable Securities Laws in, such Selling Jurisdictions outside of Canada and the United States.
(bc) The Company Corporation agrees that the Agents Underwriter shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Offered Shares. The Agents Underwriter shall have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the AgentsUnderwriter. The Company Corporation grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents Underwriter and appoints the Agents Underwriter as trustees trustee of such rights and benefits for such Selling Firms, and the Agents Underwriter hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any If the Underwriter appoints a Selling Firm appointed pursuant to the provisions of this subsection 3(bSection 3(c) or with whom the Agents have a contractual relationship with respect shall use its commercially reasonable efforts to the Offering, if any, ensure such Selling Firm agrees with the Agents Underwriter to comply with the covenants and obligations given by the Agents Underwriter herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provinces.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
Samples: Underwriting Agreement (Nouveau Monde Graphite Inc.)
The Offering. (a) The sale of Company understands that, although the offer to purchase the Shares to is being made by the Purchasers shall be effected in a manner that is in compliance with applicable Securities Laws and upon Underwriters as purchaser, the terms set out in the Prospectus and in this Agreement. The Agents Underwriters will use their best efforts endeavor to arrange for Substituted Purchasers for the Shares in one or more of the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon Canadian Jurisdictions, subject to acceptance by the Company and the AgentsCompany, acting reasonably, in connection of the Subscription Agreements, with the Offering; howevereffect that such Substituted Purchasers will be the initial purchasers of the applicable Shares. The Underwriters shall offer for sale and sell the Shares in accordance with the terms of this Agreement, it is understood on a private placement basis pursuant to exemptions from the prospectus requirements of Canadian Securities Laws and agreed that Regulation S under the Agents shall have no obligation to purchase the SharesAct.
(b) The Company agrees Underwriters acknowledge that, subject to the conditions contained in Section 9 hereof being satisfied and subject to the rights of the Underwriters contained in this Agreement, the Underwriters shall become obligated to purchase or cause to be purchased all of the Shares. To the extent that Substituted Purchasers purchase Shares at the Agents Closing, the Underwriters shall have the right to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers not be obligated to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of Shares so purchased by such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents hereinSubstituted Purchasers.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that Neither the Company has prepared and filed nor the Preliminary Prospectus and has obtained pursuant Underwriters shall (i) provide to the Passport System, a Passport Decision Document in respect prospective purchasers of the proposed distribution Shares any document or other material that would constitute an offering memorandum or future oriented financial information within the meaning of Canadian Securities Laws, or (ii) engage in any form of general solicitation or general advertising in connection with the offer and sale of the Shares. The Company has prepared and will promptly, after including but not limited to, causing the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document for the Final Prospectus in order to qualify the Shares for distribution in each of the Qualifying Provinces, as soon as possible, and in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date as the Company and the Lead Agent may agree) and until the day on which the distribution sale of the Shares is completedto be advertised in any newspaper, the Company will promptly takemagazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television or telecommunications, including electronic display, or cause conduct any seminar or meeting relating to be taken, all additional steps the offer and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution sale of the Shares in the Qualifying Provinceswhose attendees have been invited by general solicitation or advertising.
(d) The Agents shallShares shall have attached to them, upon whether through the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy electronic deposit system of the Final Prospectus (together with Canadian Depository for Securities, an ownership statement issued under a direct registration system or other electronic book-entry system, or on certificates that may be issued, as applicable, any amendments thereto) legends as may be prescribed by the Canadian Depository for Securities in addition to all persons resident the legends set out in the Qualifying Provinces who are to acquire the SharesSubscription Agreements.
(e) Prior The Underwriters agree that all offers and sales of the Shares, by the Underwriter, prior to the filing expiration of the Preliminary Prospectus, applicable distribution compliance period specified in Regulation S under the Final Prospectus and Act shall be made in compliance with the Closing, the Company shall have permitted the Agents provisions of Rule 903 or Rule 904 under said Act; pursuant to review each registration of the Preliminary Prospectus and Shares under the Final Prospectus and shall allow Act; or pursuant to an exemption from the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable registration requirements of the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by themAct.
Appears in 1 contract
The Offering. 2.1 Subject to the terms and conditions of this Agreement, the Underwriters offer to purchase the Flow-Through Shares, and by acceptance of this Agreement the Company agrees to sell to the Underwriters, and the Underwriters agree to purchase at the Closing Time on the Closing Date, all, and not less than all, of the Flow-Through Shares. The Underwriters acknowledge that, subject to the conditions contained in section 6 hereof being satisfied, the Underwriters shall become obligated to purchase or cause to be purchased all of the Flow-Through Shares . The Underwriters shall have the right to cause the Flow-Through Shares to be purchased by qualified Substituted Purchasers in the Canadian Selling Jurisdictions in place of the Underwriters in accordance with Applicable Securities Laws, and that the obligation of the Underwriters to purchase the Flow-Through Shares shall, upon completion and settlement of such sales, be reduced by an amount equal to the number of Flow-Through Shares purchased by such Substituted Purchasers from the Company.
2.2 The parties to this Agreement acknowledge that the Offered Securities have not been and will not be registered under the U.S. Securities Act and may not be offered or sold in the United States except pursuant to the exemption from the registration requirement of the U.S. Securities Act afforded by Rule 144A thereunder and similar exemptions under applicable securities laws of any state of the United States. The Company understands and agrees that except as expressly contemplated herein, the Underwriters may not arrange for Substituted Purchasers or End Purchasers of the Offered Securities in the United States, and that the offer to purchase the Offered Securities in the United States is being made by the Underwriters, acting through its U.S. Affiliates, in accordance with this Agreement, on a private-placement basis to Qualified Institutional Buyers in the United States, it being understood and agreed that such sales do not trigger: (ai) any obligation to prepare and file a prospectus, offering memorandum, registration statement or similar disclosure documents; or (ii) any registration or other obligation on the part of the Company including, but not limited to, any continuing obligation in that jurisdiction.
2.3 The Company hereby agrees to comply with all Applicable Securities Laws on a timely basis in connection with the Offering and undertakes to file, or cause to be filed, within the periods stipulated under Applicable Securities Laws, all forms, documents or undertakings required to be filed by the Company in connection with the issue and sale of the Shares Offered Securities so that the distribution of the Offered Securities may lawfully occur without the necessity of filing a prospectus, a registration statement or other offering document with any Commission in the Selling Jurisdictions, and the Underwriters agrees to assist the Purchasers shall be effected Company in a manner that is in all reasonable respects to secure compliance with applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company and the Agents, acting reasonably, all regulatory requirements in connection with the Offering; however, it is understood and agreed that . All fees payable in connection with such filings shall be paid by the Agents shall have no obligation to purchase the SharesCompany.
2.4 Neither the Company nor the Underwriters shall: (bi) The Company agrees that the Agents shall have the right provide to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members prospective purchasers of the selling group (comprised Offered Securities any document or other material that would constitute an offering memorandum or "future-oriented financial information" within the meaning of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents herein.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents that the Company has prepared and filed the Preliminary Prospectus and has obtained pursuant to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Applicable Securities Laws, and will use its best efforts to obtain a Passport Decision Document except for the Final Prospectus Offering Document; or (ii) engage in order to qualify any form of general solicitation or general advertising in connection with the Shares for distribution in each offer and sale of the Qualifying ProvincesOffered Securities, as soon as possibleincluding but not limited to, and causing the sale of the Offered Securities to be advertised in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16newspaper, 2012 (magazine, printed public media, printed media or such other time and/or later date as similar medium of general and regular paid circulation, broadcast over radio, television or telecommunications, including electronic display, or conduct any seminar or meeting relating to the Company offer and the Lead Agent may agree) and until the day on which the distribution sale of the Shares is completed, the Company will promptly take, Offered Securities whose attendees have been invited by general solicitation or cause to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares in the Qualifying Provincesadvertising.
(d) The Agents shall, upon the Company obtaining a Passport Decision Document for the Final Prospectus from the Principal Regulator, deliver one copy of the Final Prospectus (together with any amendments thereto) to all persons resident in the Qualifying Provinces who are to acquire the Shares.
(e) Prior to the filing of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed by them.
Appears in 1 contract
The Offering. (a) The sale of the Shares Corporation hereby agrees to the Purchasers shall be effected in a manner that is in secure compliance with applicable all Applicable Securities Laws and upon the terms set out in the Prospectus and in this Agreement. The Agents will use their best efforts to arrange for Purchasers for the Shares in the Qualifying Provinces and in those jurisdictions outside of Canada as may be agreed upon by the Company and the Agents, acting reasonably, on a timely basis in connection with the Offering; howeverdistribution of the Debentures and the Corporation will execute and file with the Securities Commissions all forms, it is understood notices and agreed that certificates relating to the Agents shall have no obligation Offering required to purchase be filed pursuant to the SharesApplicable Securities Laws in the Offering Jurisdictions in the time required by Applicable Securities Laws in the Offering Jurisdictions.
(b) The Company agrees Corporation hereby appoints the Agent as exclusive Agent, to offer and sell the Debentures on a commercially reasonable efforts basis and the Agent hereby accepts such appointment. Notwithstanding anything to the contrary contained herein or any oral representations or assurances previously or subsequently made by the parties hereto, this Agreement does not constitute a commitment by, or legally binding obligation of, the Agent or any of its respective affiliates to act as underwriters, initial purchasers, arrangers, and/or placement Agent in connection with any offering of securities of the Corporation, including the Debentures, or to provide or arrange any financing, other than the appointment as Agent in connection with the Offering in accordance with the prior sentence and otherwise on the terms set forth herein. The Agent understands that the Agents shall have the right Corporation will concurrently issue and sell Debentures to invite one or more investment dealers (each, a “Selling Firm”) to form a selling group to participate in the soliciting of offers to purchase the Shares. The Agents have the exclusive right to control all compensation arrangements between the members of the selling group (comprised of such Selling Firms) and the Agents. The Company grants all of the rights and benefits of this Agreement to any Selling Firm so appointed by the Agents and appoints the Agents as trustees of such rights and benefits for such Selling Firms, and the Agents hereby accept such trust and agree to hold such rights and benefits for and on behalf of such Selling Firms. The Agents shall ensure that any Selling Firm appointed purchasers pursuant to the provisions of this subsection 3(b) or with whom the Agents have a contractual relationship with respect to the Offering, if any, agrees with the Agents to comply with the covenants and obligations given by the Agents hereinNon-Brokered Placement.
(c) The Company represents and warrants to, and covenants and agrees with, the Agents Corporation understands that the Company has prepared and filed Agent will have the Preliminary Prospectus and has obtained pursuant right to the Passport System, a Passport Decision Document in respect of the proposed distribution of the Shares. The Company has prepared and will promptly, after the execution and delivery of this Agreement, file the Final Prospectus in each of the Qualifying Provinces with the Canadian Securities Regulators under applicable Securities Laws, and will use its best commercially reasonable efforts to obtain a Passport Decision Document arrange for the Final Prospectus Debentures to be purchased by the Subscribers:
(i) in order to qualify the Shares for distribution Offering Jurisdictions on a private placement basis in each compliance with Applicable Securities Laws such that the offer and sale of the Qualifying Provinces, as soon as possible, and Debentures does not obligate the Corporation to file a prospectus; and
(ii) in any event not later than 2:00 p.m. (Vancouver time)/5:00 p.m. (Toronto time) on November 16, 2012 (or such other time and/or later date jurisdictions as consented to by the Company Corporation on a private placement basis in compliance with all Applicable Securities Laws of such other jurisdictions provided that no prospectus, registration statement or similar document is required to be filed in such jurisdiction, no registration or similar requirement would apply with respect to the Corporation in such other jurisdictions and the Lead Agent may agree) and until the day on which the distribution of the Shares is completed, the Company will promptly take, or cause Corporation does not thereafter become subject to be taken, all additional steps and proceedings that may from time to time be required under applicable Securities Laws to qualify the distribution of the Shares on-going continuous disclosure obligations in the Qualifying Provincessuch other jurisdictions.
(d) The Agents shall, upon Neither the Company obtaining a Passport Decision Document for Corporation nor the Final Prospectus from Agent will: (i) provide to any prospective purchasers of Debentures any document or other material that would constitute an offering memorandum within the Principal Regulator, deliver one copy meaning of Applicable Securities Laws; or (ii) engage in any form of general solicitation or general advertising in connection with the offer and sale of the Final Prospectus (together with Debentures, including any amendments thereto) to all persons resident advertisement, article, notice or other communication published in the Qualifying Provinces who are to acquire the Shares.
(e) Prior any newspaper, magazine, printed public media, printed media or similar media, or broadcast over radio, television or telecommunications, including electronic display, or any seminar or meeting relating to the filing offer and sale of the Preliminary Prospectus, the Final Prospectus and the Closing, the Company shall Debentures whose attendees have permitted the Agents to review each of the Preliminary Prospectus and the Final Prospectus and shall allow the Agents to conduct any due diligence investigations which they reasonably require in order to fulfill their obligations as agents under applicable Securities Laws and in order to enable the Agents to responsibly execute the certificate in the Preliminary Prospectus and the Final Prospectus required to be executed been invited by themgeneral solicitation or advertising.
Appears in 1 contract
Samples: Agency Agreement
