WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that: (a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts; (b) the Issuer has no subsidiaries; (c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof; (d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business; (e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated; (f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation; (g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus; (h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus; (i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer; (j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law; (k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date: (i) the Offered Shares and Over-Allotment Shares will be duly and validly authorized and issued as fully paid and non-assessable; (ii) the Agent’s Option will be duly and validly created, authorized and issued; and (iii) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof and upon such issuance shall be issued as fully paid and non-assessable; (l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange; (m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject; (n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein; (o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws; (p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws; (q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements; (r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under the Offering and the number of Over-Allotment Shares under the Over-Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies; (s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent; (t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; (u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer; (v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein; (w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes; (x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time; (y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; (z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so; (aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and (bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations. 9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to: (a) the exercise of the Over-allotment Option; (b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date; (c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and (d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed. 9.3 The Agent warrants, represents and covenants to the Issuer that: (a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated; (b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions; (c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein; (d) it is a member in good standing of the Exchange; and (e) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-by- laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and Over-Allotment Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise fulfillment of the Agent’s Option in accordance with its terms thereof exercise requirements thereof, including payment of the requisite consideration therefor, and upon such issuance shall be issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under the Offering and the number of Over-Allotment Shares under the Over-Over- Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;; and
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(e) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer ´,QIRUPDWLRQµ UHODWLQJ WR WKH ,VVXHU to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the UHODWLQJ WR FUHGLWRUV· ULJKWV JHQHUDO extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Shares included in the Offered Shares and Units, the Over-Allotment Shares will be duly Units DQG WKH $wJillHbeQduWly·anVd v al8idlyQ fully paid and non-assessable; aLuthWorVize d and issued as
(ii) the $JHQW·V Sh$areGs wYillLbVe dRulUy a\nd validly authorized and issued as fully paid and non-assessable;
(iiiii) the Agent’s Option Warrants included in the Offered Units DQG $JHQanWd t·heV 8QLWV Over-Allotment Units will be duly and validly created, authorized and issued; and;
(iiiiv) the Agent’s Option $JHQW·V 2beSduWlyLanRd Qva lidlZy cLreOateOd, authorized and issued;
(v) the Warrant Shares issuable on exercise of the Agent’s Option Warrants included in the Offered Units $JHiQts Wan·d tVhe O8veQr-Allotment Units will be duly and validly authorized for issuance upon exercise of such Warrants and upon such issuance shall be issued as fully paid and non- assessable; and
(vi) the $JHQW·V 2SWLRQ 6KDUHV LVVonXDEOH RQ will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof and upon such issuance shall $JHQW·V 2upSonWsuLchRisQsu ancDe sQhaGll be issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares Units or Over-Allotment Shares Units tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares Units under the Offering and the number of Over-Allotment Shares Units under the Over-Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been ,VVXHU·V PDQDJHPHQW WR EH SHQGLQJ DQ or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s entitlHG WR DQ\ EURNHUDJH D fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general GHYHORSPHQW RI WKH an,d fVorVwoXrkHingUc·apiVtal gePneLralQHUDO SU corporate purposes;; and
(x) there is no non-competitionthe Shares included in the Offered Units, exclusivity or other similar agreementthe Shares included in the Over- Allotment Units, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations Warrant Shares issuable on exercise of the Issuer Warrants included in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Units, the Warrant Shares and issuable on exercise of the Over-Allotment Shares will be qualified investments under Warrants included in the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer Over-$OORWPHQW 8QLWV WKH $JH DQG WKH $JHQW·iVll a ll b$e GquYaliLfieVd iRnvUest\me nt6s uKndDerUthHe V Z is the Issuer or a corporation with which the Issuer does not deal at arms’ GHDO DW DUPV length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and;
(d) previously scheduled property and/or other corporate acquisitions, ; and
(e) a non-brokered private placement of units with terms similar to those of the Offered Units for gross proceeds of $350,000 to close prior to the Closing Date; and
(f) any non-brokered equity financing with an issue price of the security being offered that is above the Offering Price that closes after the Closing Date; from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and Over-Allotment Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option Warrant will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Warrant Shares issuable on exercise of the Agent’s Option Warrant will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof Warrant and upon such issuance shall be issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-non- compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under the Offering and the number of Over-Allotment Shares under the Over-Allotment OptionMaximum Offering, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Issuer intends to use the Proceeds will be used by as described in the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;Prospectus; and
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered FT Shares and Over-Allotment the NFT Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option FT Warrants and the NFT Warrants will be duly and validly created, authorized and issued; and;
(iii) the Agent’s Option FT Warrant Shares issuable on exercise of the Agent’s Option FT Warrants will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof FT Warrants and upon such issuance shall be issued as fully paid and non-assessable and the NFT Warrant Shares issuable on exercise of the NFT Warrants will be duly and validly authorized for issuance upon exercise of the NFT Warrants and upon such issuance shall be issued as fully paid and non-assessable; and
(iv) the Agent’s Shares and the Corporate Finance Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-non- compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares FT Units or Over-Allotment Shares NFT Units tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under FT Units or NFT Units, as the case may be, offered pursuant to the Offering and the number of Over-Allotment Shares under the Over-Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the conduct exploration and development resource definition work on certain of the Issuer’s mineral properties and for working capital general corporate purposescapital;
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer will cause an amount that is a party or by not less than the gross proceeds from the sale of the FT Shares included in the FT Units to be expended on Canadian exploration expenses, which expenses will qualify as flow- through expenditures within the meaning of the Income Tax Act (Canada), such expenses to be incurred no later than December 31, 2014 pursuant to the Income Tax Act (Canada); and the Issuer is otherwise bound that would now or hereafter in any way limit will renounce such expenses to the business or operations subscribers of the Issuer in a particular manner FT Shares effective on or prior to a particular locality or geographic region or for a specified period of timeDecember 31, 2013;
(y) the IssuerOffered Securities, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type FT Shares issuable on exercise of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, FT Warrants and the Issuer is in compliance with NFT Shares issuable on exercise of the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares NFT Warrants will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer Company or a corporation with which the Issuer Company does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and Over-Allotment the Corporate Finance Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof and upon such issuance shall be issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under the Offering and the number of Over-Allotment Shares under the Over-Allotment OptionOffering, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(e) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;does not have a Subsidiary;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-by- laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuerit; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to as owned by it in the Final Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the its properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Final Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses business and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Final Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Final Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Final Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Final Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement by the Issuer does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, constating documents or resolutions of the Issuer, Issuer or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, Issuer which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and Over-Allotment Common Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof and upon such issuance shall be issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Final Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, Issuer or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) Schedule 9.1(o) sets forth all of the Issuer’s Intellectual Property Rights including without limitation all of the patents and trademarks held by or applied for by the Issuer and all other Intellectual Property Rights held by the Issuer; the Issuer has all Intellectual Property Rights which are necessary to the conduct of its business and property the Issuer’s Intellectual Property Rights are valid and subsisting and held by the Issuer with good and marketable title and are in good standing free and clear of all liens, charges, security interests or encumbrances; all registrations with respect to the Issuer’s Intellectual Property Rights have been made and kept renewed and are in full force and effect; and the operation of the Issuer are in compliance in all material respects with all Environmental LawsIssuer’s business does not, to the knowledge of the Issuer, infringe the Intellectual Property Rights of any other person and there are no facts known after due enquiry outstanding moral rights attaching to any copyright owned or used by the Issuer which could give rise to a notice that have not been waived in favour of non-compliance with any Environmental Laws;the Issuer;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(rq) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Common Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Common Shares under offered pursuant to the Offering and or the number of Over-Allotment Shares under the Over-Over- Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(sr) there is not presently, and will not be until the conclusion of the distribution under the Final Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(ts) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(ut) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(vu) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;; and
(wv) the Proceeds will be used by the Issuer to fund the exploration for research and development of the Issuer’s mineral properties costs, marketing costs, intellectual property costs and for working capital general corporate purposes;
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding purposes as described in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operationsFinal Prospectus.
9.2 The Issuer covenants, represents covenants and warrants to the Agent that it will notagrees not to, directly or indirectly, issue, sell, offer, sell or grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option sell or right in respect of, or otherwise dispose ofgrant, any additional Common Shares equity or any quasi- equity securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 120 days from after the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld withheld, except in conjunction with:
(a) the grant or delayedexercise of stock options and other similar issuances pursuant to the share incentive plan of the Issuer and other share compensation arrangements;
(b) outstanding warrants; and
(c) the issuance of securities in connection with property or share acquisitions in the normal course of business.
9.3 After completion of the Offering, the Agent shall be entitled to place advertisements or announcements in financial and other newspapers, journals or other publications at its own expense describing the services it provided in connection with the Offering.
9.4 The Agent warrants, represents and covenants to the Issuer that:
(a) it has been duly incorporated and is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds incorporated and has all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the requisite corporate power and capacity to carry on the its business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictionsas now conducted;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(db) it is a member in good standing of the Exchange; and;
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering;
(d) it will be at the time of Closing, a broker or dealer properly registered in each of the Selling Jurisdictions in Canada as required by applicable securities laws; and
(e) it is acquiring the Agent's Options as principal for its own account.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and Shares, the Over-Allotment Shares and the Corporate Finance Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof and upon such issuance shall be issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-non- compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Common Shares under offered pursuant to the Offering and the number of Over-Allotment Common Shares under subject to the Over-Allotment OptionOption Offering, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the conduct exploration and development of resource definition work on the Issuer’s mineral properties Aspen Property and for working capital general corporate purposes;capital; and
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenantsalso warrants, represents and warrants covenants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant tothat:
(a) the Issuer will not issue, announce any issue or agree to issue any securities of the Issuer other than issuances:
(i) under existing director, employee or consultant stock option, bonus or purchase plans;
(ii) under director or employee stock option or bonuses granted subsequently in accordance with regulatory approval;
(iii) as a result of the exercise of currently outstanding options or requirement payments to maintain the Over-allotment Option;Issuer’s property in good standing; or
(iv) in connection with the Issuer’s acquisition of additional mineral property of related interests; during the period beginning on the date of this Agreement and ending 60 days after the Closing Date without the written agreement of the Agent, such agreement not to be unreasonably withheld; and
(b) the grant Issuer’s officers and directors have agreed not to sell or exercise agree to sell, or announce any intention to sell or agree to sell, any Common Shares or securities exchangeable or convertible into Common Shares of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place the Issuer prior to the Closing Date;
(c) closing of the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof Offering and continuing for a period of 90 60 days from the Closing Date without with the prior written consent of the Agent, such consent not to be unreasonably withheld or delayedwithheld.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with generally accepted accounting principles or International Financial Reporting Standards, as the case may be,the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer will file with the United States Securities and Exchange Commission, and cause to be declared effective a registration statement on Form S-1 for the issuance and resale of the Common Shares and Over- Allotment Shares;;
(d) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(de) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the . The Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(ef) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(fg) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(gh) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards United States generally accepted accounting principles and accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(hi) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(ij) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articlesby-laws, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(jk) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(kl) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and the Over-Allotment Shares (if applicable) will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option Options will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Options Shares issuable on exercise of the Agent’s Option Options will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof Options and upon such issuance shall be issued as fully paid and non-assessable;
(lm) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the ExchangeProspectus;
(mn) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(no) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(op) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws;
(pq) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(qr) the Issuerhas all Intellectual Property Rights which are necessary to the conduct of its business and the Issuer’s Intellectual Property Rights are valid and subsisting and held by the Issuer with good and marketable title and are in good standing free and clear of all liens, charges, security interests or encumbrances; all registrations with respect to the Issuer’s Intellectual Property Rights have been made and kept renewed and are in full force and effect; and the operation of the Issuer’s business does not, to the knowledge of the Issuer, infringe the Intellectual Property Rights of any other person and there are no outstanding moral rights attaching to any copyright owned or used by the Issuer that have not been waived in favour of the Issuer;
(s) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(rt) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Common Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under offered pursuant to the Offering and the number of Over-Allotment Shares under the Over-Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policiesOffering;
(su) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(tv) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(uw) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(vx) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;; and
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares Securities will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the Issuer has no Subsidiary;
(b) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standardsgenerally accepted accounting principles, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction jurisdictions of incorporation and has all requisite corporate power and authority to carry on its business businesses as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the . The Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) except as qualified by the Prospectus, the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the propertiesproperty, business or assets (including without limitation the Earn-In Agreement and the Underlying Agreement) are in good standing under the applicable laws, and the properties (including without limitation the Fish Project) are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses business and securities, and contains no Misrepresentation;
(g) except as listed in Schedule 9.1(g), the Issuer is not a party to or bound by any Material Contract or commitment whether oral or written; all Material Contracts of the Issuer can be fulfilled and performed in all material respects by the Issuer in the normal course of business dealings and all such Material Contracts are in good standing and no event of default has occurred and is continuing and no event has occurred which, with the giving of notice, the passing of time or both, would constitute an event of default under any Material Contract;
(h) the financial statements of the Issuer Issuer, which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards Standards, accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(hi) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(ij) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articlesby-laws, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(jk) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(kl) the Issuer has full corporate authority and capacity to issue the Securities Shares, Corporate Finance Shares, the Agent’s Options and the Agent’s Option Shares and on the Closing Date:
(i) the Offered Shares and Over-Allotment the Corporate Finance Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option Options will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof Options, and upon such issuance shall be issued as fully paid and non-assessable;
(lm) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except the consent of the Exchange and except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the ExchangeProspectus;
(mn) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(no) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect Material Adverse Effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(op) the Fish Project, and all other business and property of the Issuer are Issuer, is in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws;
(pq) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(qr) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under the Offering and the number of Over-Allotment Shares under the Over-Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has have been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, payable and there are no liens for taxes on the assets of the Issuer Issuer, except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect Material Adverse Effect on the properties, business or assets of the Issuer;; and
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s finders’ fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities Shares and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with generally accepted accounting principles or International Financial Reporting Standards, as the case may be, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer will file with the United States Securities and Exchange Commission, and cause to be declared effective a registration statement on Form S-1 for the issuance and resale of the Common Shares and Over- Allotment Shares;;
(d) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(de) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the . The Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(ef) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(fg) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(gh) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards United States generally accepted accounting principles and accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(hi) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(ij) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articlesby-laws, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(jk) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(kl) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and the Over-Allotment Shares (if applicable) will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option Options will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Options Shares issuable on exercise of the Agent’s Option Options will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof Options and upon such issuance shall be issued as fully paid and non-assessable;
(lm) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the ExchangeProspectus;
(mn) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(no) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(op) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-non- compliance with any Environmental Laws;
(pq) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(qr) the Issuer has all Intellectual Property Rights which are necessary to the conduct of its business and the Issuer’s Intellectual Property Rights are valid and subsisting and held by the Issuer with good and marketable title and are in good standing free and clear of all liens, charges, security interests or encumbrances; all registrations with respect to the Issuer’s Intellectual Property Rights have been made and kept renewed and are in full force and effect; and the operation of the Issuer’s business does not, to the knowledge of the Issuer, infringe the Intellectual Property Rights of any other person and there are no outstanding moral rights attaching to any copyright owned or used by the Issuer that have not been waived in favour of the Issuer;
(s) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(rt) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Common Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under offered pursuant to the Offering and the number of Over-Allotment Shares under the Over-Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policiesOffering;
(su) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(tv) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(uw) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(vx) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;; and
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares Securities will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement (Security Devices International Inc.)
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiariesthe following subsidiaries (the “Subsidiaries”): BHR Capital Corp., Cloud Nine College Ltd. and English Canada World Organization Inc. and the Issuer is the registered and beneficial owner of all of the issued and outstanding shares of the Subsidiaries;
(c) each of the Issuer and the Subsidiaries has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) each of the Issuer and the Subsidiaries is conducting its business in compliance in all material respects with all applicable educational licensing and anti-pollution legislation, regulations or by-laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuerit; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it or the Subsidiaries will be unable to comply with without materially adversely affecting its business;
(e) each of the Issuer and the Subsidiaries is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to as owned by it in the Prospectus, and any and all agreements pursuant to which the Issuer or the Subsidiaries holds any such interest in the its properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer Issuer, the Subsidiaries and its their respective businesses and securities, and contains no Misrepresentation;
(g) the estimated 12 month gross margin set out in the Prospectus is reasonable and the Issuer does not anticipate actual gross margin to be materially adversely different from the estimates stated;
(h) the consolidated financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes Material Changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(hi) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- non-assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(ij) neither the Issuer nor the Subsidiaries is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement by the Issuer does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the IssuerIssuer or the constating documents of the Subsidiaries, or any indenture, agreement (written or oral), lease or other document to which either the Issuer or the Subsidiaries is a party or by which it either of them is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the IssuerIssuer or the Subsidiaries, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the IssuerIssuer or the Subsidiaries;
(jk) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(kl) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) upon receipt by the Offered Shares and Over-Allotment Issuer of full payment therefor, the Shares will be duly and validly authorized and issued as fully paid and non- assessable;
(ii) the Warrants will be duly and validly created, authorized and issued;
(iii) the Warrant Shares issuable on exercise of the Warrants will be duly and validly authorized for issuance upon exercise of the Warrants and upon such issuance and receipt by the Issuer of full payment therefor, be issued as fully paid and non-assessable;
(iiiv) the Agent’s Option will be duly and validly created, authorized and issued; and
(iiiv) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof and upon such issuance shall and receipt by the Issuer of full payment therefor, be issued as fully paid and non-assessable;
(lm) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares and Warrants on the Exchange;
(mn) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(no) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer or the Subsidiaries which, if determined adversely to the Issuer or the Subsidiaries might have a material adverse effect on the financial condition, results of operations, business or prospects of the IssuerIssuer or the Subsidiaries, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(op) the Issuer has all Intellectual Property Rights which are necessary to the conduct of its business and property such Intellectual Property Rights are valid and subsisting and held by it with good and marketable title and are in good standing free and clear of all liens, charges, security interests or encumbrances; all registrations with respect to the Issuer’s Intellectual Property Rights have been made and kept renewed and are in full force and effect; and the operation of the Issuer’s business does not, to the knowledge of the Issuer are in compliance in all material respects with all Environmental Laws, infringe the Intellectual Property Rights of any other person and there are no facts known after due enquiry outstanding moral rights attaching to any copyright owned or used by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out that have not been waived in favour of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental LawsIssuer;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares Units tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under Units offered pursuant to the Offering and the number of Over-Allotment Shares under the Over-Allotment OptionOffering, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the IssuerIssuer or the Subsidiaries, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) each of the Issuer and the Subsidiaries has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) each of the Issuer and the Subsidiaries has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer or the Subsidiaries except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer or the Subsidiaries which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the IssuerIssuer or the Subsidiaries;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;; and
(w) the Proceeds will be used by the Issuer to fund as described in the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operationsProspectus.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses has good and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(c) it is appropriately registered under the applicable securities legislation in the Selling Jurisdictions where it will offer and sell the Offered Securities so as to permit it to lawfully fulfill its obligations under this Agreement;
(d) it is a member in good standing of the Exchange; and
(e) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
WARRANTIES, REPRESENTATIONS AND COVENANTS. 9.1 The Issuer covenants, represents and warrants to the Agent that:
(a) the books and records of the Issuer fairly and correctly set out and disclose in all material respects, in accordance with International Financial Reporting Standards, the financial position of the Issuer as of the date hereof, and all material financial transactions of the Issuer have been accurately recorded in the said books and records. With the exception of forecasts, projections or estimates referred to below, all information and other data (together, the “Information”) relating to the Issuer furnished by or on behalf of the Issuer to the Agent is, or, in the case of historical information, was at the date of preparation true, accurate, complete and correct in all material respects, and does not or did not, as the case may be, contain any Misrepresentation. Any projections and forecasts relating to the Issuer provided by or on behalf of the Issuer to the Agent have been prepared in good faith with the assistance of competent professional advisors and are based upon assumptions which, in light of the circumstances under which they are made, are reasonable. The Issuer is not aware of any undisclosed facts or information that could materially impact upon such projections and forecasts;
(b) the Issuer has no subsidiaries;
(c) the Issuer has been duly incorporated and organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted, to own, lease and operate its properties and assets and to carry out the provisions hereof;
(d) the Issuer is conducting its business in compliance in all material respects with all applicable licensing and anti-pollution legislation, regulations or by-by- laws, environmental protection legislation, regulations or by-laws or other similar legislation, regulations or by-laws or other lawful requirements of any governmental or regulatory bodies which are applicable to the Issuer; and the Issuer is not aware of any such legislation, regulation, by-law or lawful requirement presently in force or proposed to be brought into force by any governmental or regulatory authority which the Issuer anticipates it will be unable to comply with without materially adversely affecting its business;
(e) the Issuer is the beneficial owner of the properties, business and assets, or the interest in the properties, business and assets, referred to in the Prospectus, and any and all agreements pursuant to which the Issuer holds any such interest in the properties, business or assets are in good standing under the applicable laws, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the Prospectus contains full, true and plain disclosure of all Material Facts in relation to the Issuer and its businesses and securities, and contains no Misrepresentation;
(g) the financial statements of the Issuer which form part of the Prospectus have been prepared in accordance with International Financial Reporting Standards accurately reflect the financial position of the Issuer and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as at the date of the financial statements and there have been no adverse material changes in the financial position of the Issuer since that date, except as fully and plainly disclosed in the Prospectus;
(h) the authorized and outstanding share capital of the Issuer is as set forth in the Prospectus, all outstanding shares have been issued as fully paid and non- assessable and the only outstanding options, warrants or other rights to acquire any shares or other securities of the Issuer are as set forth in the Prospectus;
(i) the Issuer is not in default or breach of, and the execution and delivery of, and the performance and compliance with the terms of this Agreement does not and will not result in any breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, in any material respect, any term or provisions of the articles, notice of articles, or resolutions of the Issuer, or any indenture, agreement (written or oral), lease or other document to which the Issuer is a party or by which it is bound, or any judgment, decree or order, or to its knowledge, statute, rule or regulation applicable to the Issuer, which default or breach might reasonably be expected to materially adversely affect the business, operations, assets, capital or condition (financial or otherwise) of the Issuer;
(j) this Agreement is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies and except to the extent that the enforcement of rights to indemnity and waiver of contribution may be limited by applicable law;
(k) the Issuer has full corporate authority and capacity to issue the Securities and on the Closing Date:
(i) the Offered Shares and Over-Allotment Shares and the Corporate Finance Fee Shares will be duly and validly authorized and issued as fully paid and non-assessable;
(ii) the Agent’s Option will be duly and validly created, authorized and issued; and
(iii) the Agent’s Option Shares issuable on exercise of the Agent’s Option will be duly and validly authorized for issuance upon exercise of the Agent’s Option in accordance with its terms thereof and upon such issuance shall be issued as fully paid and non-assessable;
(l) no consent of any third party is required in connection with the transactions contemplated by this Agreement, except to the extent that this Agreement contemplates obtaining receipts for the Prospectus or approval to list the Common Shares on the Exchange;
(m) no securities regulatory authority has issued any order preventing or suspending trading in any securities of the Issuer, and the Issuer has not been, and is not currently, in default of any requirement of any securities laws to which the Issuer is subject;
(n) no litigation, administrative proceeding, arbitration or other proceeding before or of any court, tribunal, arbitrator or regulatory or other governmental body or dispute with any regulatory or other governmental body is presently in process or pending or threatened against the Issuer which, if determined adversely to the Issuer might have a material adverse effect on the financial condition, results of operations, business or prospects of the Issuer, or which would materially impair the ability of the Issuer to consummate the transactions contemplated hereby or to duly observe and perform any of its covenants or obligations herein;
(o) the business and property of the Issuer are in compliance in all material respects with all Environmental Laws, and there are no facts known after due enquiry by the Issuer which could give rise to a notice of non-compliance with any Environmental Laws;
(p) there are no existing claims, demands, damages, expenses, suits, proceedings, actions, negotiations, or causes of action of any nature whatsoever, whether threatened or pending, arising out of the presence on any property in respect of which the Issuer has an interest, either past or present, of any Contaminant, or out of any past or present activity conducted on any such property, involving any Contaminant or any violation of any Environmental Laws;
(q) the Issuer has conducted its activities in connection with the Offering in compliance with all applicable laws and regulatory requirements;
(r) the Issuer shall not unreasonably reject any subscription for Offered Shares or Over-Allotment Shares tendered by the Agent, unless all such subscriptions tendered exceed the number of Offered Shares under the Offering and the number of Over-Allotment Shares under the Over-Over- Allotment Option, or the acceptance of such subscription would be contrary to applicable corporate and securities legislation or Exchange policies;
(s) there is not presently, and will not be until the conclusion of the distribution under the Prospectus, any Material Change or change in any Material Fact relating to each of the Issuer, its business or its respective securities which has not been or will not be fully disclosed in the Prospectus or otherwise to the Agent;
(t) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has been requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(u) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable, if any, and there are no liens for taxes on the assets of the Issuer except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Issuer;
(v) other than the Agent, no person, firm or corporation acting or purporting to act at the request of the Issuer is entitled to any brokerage, agency or finder’s fee in connection with the transactions described herein;
(w) the Proceeds will be used by the Issuer to fund the exploration and development of the Issuer’s mineral properties and for working capital general corporate purposes;; and
(x) there is no non-competition, exclusivity or other similar agreement, commitment or understanding in place to which the Issuer is a party or by which the Issuer is otherwise bound that would now or hereafter in any way limit the business or operations of the Issuer in a particular manner or to a particular locality or geographic region or for a specified period of time;
(y) the Issuer, including its facilities, is insured against such losses and risks, and in such amount as are reasonably necessary, as is customary for the type of business carried on by and proposed to be carried on by the Issuer. All policies of insurance insuring the Issuer or any of its businesses, assets, employees, officers and directors are in full force and effect, and the Issuer is in compliance with the terms of such policies in all material respects. There are no claims by the Issuer under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;
(z) the Issuer has maintained adequate insurance in accordance with the terms and conditions of all agreements to which it is a party, where there is an ongoing requirement to do so;
(aa) the Offered Shares and the Over-Allotment Shares and the Corporate Finance Fee Shares will be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts and deferred profit sharing plans (other than deferred profit sharing plans for which the employer is the Issuer or a corporation with which the Issuer does not deal at arms’ length), subject to the specific provision of any particular plan; and
(bb) the Issuer has not, directly or indirectly: (i) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality of any jurisdiction; nor (ii) made any contribution to any candidate for public office, in either case where either the payment or the purpose of such contribution, payment or gift was, is or would be prohibited under the Canada Corruption of Foreign Public Officials Act (Canada) or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the rules and regulations promulgated thereunder or under any other laws or legislation of any relevant jurisdiction covering a similar subject matter applicable to the Issuer and its operations.
9.2 The Issuer covenants, represents and warrants to the Agent that it will not, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible into or exchangeable for Common Shares, other than pursuant to:
(a) the exercise of the Over-allotment Option;
(b) the grant or exercise of stock options and other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the Closing Date;
(c) the issue of Common Shares upon the exercise of convertible securities, warrants or options outstanding prior to the Closing Date; and
(d) previously scheduled property and/or other corporate acquisitions, from the date hereof and continuing for a period of 90 days from the Closing Date without the prior written consent of the Agent, such consent not to be unreasonably withheld or delayed.
9.3 The Agent warrants, represents and covenants to the Issuer that:
(a) it is a valid and subsisting corporation under the laws of the jurisdiction in which it was incorporated;
(b) it holds all registrations, licenses and permits that are required for carrying on its business in the manner in which such business has been carried on to sell the Offered Shares in the Selling Jurisdictions, and it has the corporate power and capacity to carry on the business carried on by it and it is duly qualified to carry on business in the Selling Jurisdictions;
(c) it has all requisite power and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein;
(d) it is a member in good standing of the Exchange; and
(ec) it has complied with and will fully comply with the requirements of all applicable securities laws, including, without limitation, the by-laws and rules of the Exchange in relation to trading in the Securities and all matters relating to the Offering.
Appears in 1 contract
Samples: Agency Agreement
