Docebo Inc F-3, filed Jan 4, 2022
Docebo Inc. (DCBO)
As filed with the Securities and Exchange Commission on January 4, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DOCEBO INC.
(Exact name of Registrant as specified in its charter)
| Ontario, Canada |
N/A | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
Adelaide St West, Suite 701
Toronto, Ontario, M5V 1R9
Telephone: (800) 681-4601
(Address and telephone number of Registrant’s principal executive offices)
Docebo NA, Inc.
600 N. Thomas St., Suite A
Athens, GA 30601
Telephone: (800) 681-4601
(Name, address, and telephone number, of agent for service)
Copies to:
| John T. McKenna Robert Sanchez Milson Yu Cooley LLP 3175 Hanover Street Palo Alto, CA 94304 U.S.A. (650) 843-5000 |
Brad Ross Goodmans LLP 333 Bay St. Suite 3400 Toronto, Ontario Canada M5H 2S7 (416) 849-6010 |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company. ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
| † | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
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| Title of each class of securities to be registered |
Amount to be registered (1) |
Proposed aggregate price |
Proposed aggregate offering price |
Amount of registration fee | ||||
| Common Shares, without nominal or par value |
— | — | $200,000,000 (2) | $18,540 (2) | ||||
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| (1) | There are being registered hereunder such indeterminate number of common shares as may from time to time be offered by the selling shareholder named in the prospectus included in this registration statement at indeterminate prices, in U.S. dollars, as shall have an aggregate offering price not to exceed $200,000,000. Pursuant to Rule 416 under the Securities Act, this registration statement also covers any additional common shares that may be offered in connection with any share split, share dividend or similar transactions. |
| (2) | Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
The Registrant hereby amends the Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a) of the Securities Act of 1933, as amended, may determine.
The information in this prospectus is not complete and may be changed. The selling shareholder may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any jurisdiction where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 4, 2022
Preliminary Prospectus
Up to $200,000,000
Common Shares
We and Intercap Equity Inc., referred to as the Selling Shareholder, have entered into an equity distribution agreement, or the Equity Distribution Agreement, with Canaccord Genuity LLC and ATB Capital Markets USA Inc., or the Sales Agents, relating to our common shares, without nominal or par value, that may be offered pursuant to this prospectus. In accordance with the terms of the Equity Distribution Agreement, the Selling Shareholder may offer and sell common shares having an aggregate offering price of up to $200,000,000 from time to time through or to the Sales Agents.
Our common shares are listed on the Toronto Stock Exchange, or the TSX, and the Nasdaq Global Select Market, or Nasdaq, under the trading symbol “DCBO.” On December 31, 2021, the closing price of the common shares on the TSX was C$84.87 per share, and on January 3, 2022, the closing price of the common shares on Nasdaq was $67.00 per share.
Sales of our common shares, if any, under this prospectus may be made by any method permitted by law, including privately negotiated transactions, which may include block trades, or transactions that are deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Subject to the terms of the Equity Distribution Agreement, the Sales Agents are not required to sell any specific number or dollar amount of common shares, but will act as the Selling Shareholder’s sales agent using commercially reasonable efforts to sell on its behalf all of the common shares requested to be sold by the Selling Shareholder consistent with their normal trading and sales practices, on mutually agreed terms between the Sales Agents and the Selling Shareholder. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The Sales Agents will be entitled to compensation under the terms of the Equity Distribution Agreement at a fixed commission rate not to exceed 3.00% of the gross proceeds of any common shares sold under the Equity Distribution Agreement. In connection with the sale of common shares on behalf of the Selling Shareholder, the Sales Agents will be deemed to be “underwriters” within the meaning of the Securities Act and the compensation of the Sales Agents will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to the Sales Agents with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act. See the section titled “Plan of Distribution”.
We will not receive any proceeds from the offering. See the section titled “Use of Proceeds” for further information.
We are a “foreign private issuer” under applicable rules of the Securities and Exchange Commission, and are subject to reduced public company reporting requirements for this prospectus and future filings.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described in the section titled “Risk Factors” in this prospectus and under similar headings in the documents incorporated by reference into this prospectus before investing in our common shares.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Canaccord Genuity
ATB Capital Markets
The date of this prospectus is , 2022.
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| MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES TO U.S. HOLDERS OF OUR COMMON SHARES |
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This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission, or the Commission, utilizing a “shelf” registration or continuous offering process. This prospectus covers the offering and sale by the Selling Shareholder of common shares having an aggregate offering price of $200,000,000 that may be sold pursuant to the Equity Distribution Agreement with the Sales Agents from time to time.
We provide information to you about this offering of our common shares in this prospectus, which describes the specific details regarding this offering. To the extent that any information in this prospectus is inconsistent with any information incorporated by reference therein, you should rely on the information in this prospectus. This prospectus may also be supplemented from time to time by one or more prospectus supplements. Such prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you must rely on the information in the prospectus supplement. If any statement in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated by reference in this prospectus—the statement in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier dates.
Before buying any of the common shares that the Selling Shareholder is offering, we urge you to carefully read this prospectus and all of the information incorporated by reference herein, as well as the additional information described under the sections titled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.” These documents contain important information that you should consider when making your investment decision.
Neither we, the Selling Shareholder nor the Sales Agents have authorized any other person to provide you with any information different from that contained in this prospectus, in any prospectus supplement or in any free writing prospectus prepared by us or on our behalf. We, the Selling Shareholder and the Sales Agents take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. You should assume that the information appearing in this prospectus, any prospectus supplement or any free writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed since that date.
The Selling Shareholder is offering to sell, and seeking offers to buy, common shares only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and the offering of the common shares in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the common shares and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
Unless the context indicates otherwise, as used in this prospectus, the terms “Docebo,” the “Company,” “we,” “us” and “our” refer to Docebo Inc. and its subsidiaries on a consolidated basis.
In this prospectus, unless otherwise indicated, all dollar amounts and references to “$” and “US$” are to U.S. dollars and references to “C$” are to Canadian dollars.
This prospectus and the information incorporated herein by reference include trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus are the property of their respective owners.
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This summary highlights selected information appearing elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus and any related free writing prospectus, including the risks of investing in our securities discussed under the section titled “Risk Factors” in this prospectus and any related free writing prospectus, and under similar headings in our most recent Annual Information Form included as an exhibit to the applicable Annual Report on Form 40-F, as may be updated by our subsequent reports on Form 6-K and other filings we make with the Commission. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Docebo Inc.
Our mission is to redefine the way enterprises, including their internal and external workforce, partners and customers, learn by applying new technologies to the traditional corporate learning management system, or LMS, market. We provide an easy-to-use, highly configurable and affordable learning platform with the end-to-end capabilities and critical functionality needed to train both internal and external workforces, partners and customers. Our solution allows its customers to take control of their desired training strategies and retain institutional knowledge, while providing efficient course delivery, advanced reporting tools and analytics. Our robust platform helps its customers centralize a broad range of learning materials from peer enterprises and learners into one LMS to expedite and enrich the learning process, increase productivity and grow teams uniformly.
Company Information
Docebo was incorporated under the Business Corporations Act (Ontario) on April 21, 2016 as Docebo Canada Inc. and all of the pre-existing operations of Docebo (primarily Docebo S.p.A. and Docebo NA, Inc.) were organized under the newly incorporated company. On October 1, 2019, the Company changed its name to “Docebo Inc.” Our head and registered office is at 366 Adelaide Street West, Suite 701, Toronto, Ontario, Canada M5V 1R9.
Our website address is www.docebo.com. The information contained on, or that can be accessed through, our web site is not part of, and is not incorporated by reference into this prospectus and should not be considered to be part of this prospectus. Investors should not rely on any such information in deciding whether to purchase our common shares.
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The Offering
| Issuer |
Docebo Inc. |
| Selling Shareholder |
Intercap Equity Inc. |
| Common shares offered by the Selling Shareholder |
Common shares having an aggregate offering price of up to $200,000,000. Based on an assumed offering price of $67.00 per share, the last reported sale price of our common shares on the Nasdaq Global Select Market, or Nasdaq, on January 3, 2022, up to 2,985,074 common shares may be sold by the Selling Shareholder under this prospectus from time to time through or to the Sales Agents. The actual number of shares sold will vary depending on the actual sale prices and aggregate dollar amount of common shares sold in this offering. |
| Common shares outstanding after this offering |
32,782,506 shares |
| Manner of offering |
“At the market” offering that may be made from time to time through or to Canaccord Genuity and ATB Capital Markets USA Inc. as Sales Agents. See the section titled “Plan of Distribution”. |
| Use of proceeds |
We will not receive any proceeds from the sale of common shares by the Selling Shareholder. The Selling Shareholder will receive all of the proceeds from the offering of common shares. |
| Risk factors |
Investing in our securities involves a high degree of risk. You should read the section titled “Risk Factors” in this prospectus and in the documents incorporated by reference into this prospectus for a discussion of factors to consider before deciding to purchase our common shares. |
| Nasdaq and TSX symbol |
“DCBO” |
The number of common shares outstanding after this offering is based on 32,782,506 common shares outstanding as of September 30, 2021, and excludes:
| • | 1,456,849 common shares issuable upon the exercise of outstanding options as of September 30, 2021, with a weighted-average exercise price of C$12.31 per common share; |
| • | 59,058 common shares issuable upon the vesting and settlement of outstanding deferred share units as of September 30, 2021; |
| • | 2,276,981 additional common shares reserved for future issuance under our Omnibus Equity Incentive Plan as of September 30, 2021; and |
| • | 565,055 additional common shares reserved for future issuance under our Employee Stock Purchase Plan as September 30, 2021. |
Subsequent to September 30, 2021, and through December 31, 2021:
| • | we granted options to purchase 38,445 common shares, with a weighted-average exercise price of C$87.96 per share; |
| • | we granted 596 deferred share units; and |
| • | we granted 46,591 restricted share units. |
As of December 31, 2021, there were 32,856,681 common shares outstanding.
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Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties described below, together with all of the other information contained or incorporated by reference in this prospectus, including the risk factors incorporated by reference herein from our most recent Annual Information Form included as an exhibit to the applicable Annual Report on Form 40-F, as may be updated by our subsequent reports on Form 6-K and other filings we make with the Commission. The risks described in these documents are not the only ones we face. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could harm our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be harmed. This could cause the trading price of our securities to decline, resulting in a loss of all or part of your investment. Please also read carefully the section below titled “Special Note Regarding Forward-Looking Statements.”
Risks Relating to the Offering
The actual number of common shares the Selling Shareholder will sell under the Equity Distribution Agreement, at any one time or in total, is uncertain.
Subject to certain limitations in the Equity Distribution Agreement and compliance with applicable law, the Selling Shareholder has the discretion to deliver a placement notice to the Sales Agents at any time throughout the term of the Equity Distribution Agreement. The per share price of the common shares that are sold by the Sales Agents after delivering a placement notice will fluctuate based on the market price of our common shares during the sales period and limits the Selling Shareholder set with the Sales Agents. Because the price per share of each common share sold will fluctuate based on the market price of our common shares during the sales period, it is not possible at this stage to predict the number of shares that will be ultimately sold.
The common shares offered hereby will be sold in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their investment results. The Selling Shareholder will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.
As we are a Canadian corporation and most of our directors and officers reside in Canada or the provinces thereof, it may be difficult for United States shareholders to effect service on us to realize on judgments obtained in the United States. Similarly, it may be difficult for Canadian investors to enforce civil liabilities against our directors and officers residing outside of Canada.
As a corporation organized under the laws of Ontario, Canada, it may be difficult to bring actions under U.S. federal securities law against us. Many of our directors and officers, as well as the experts named in this prospectus, reside principally in Canada or outside of the United States. Because a substantial portion of our assets and the assets of these persons are located outside of the United States, it may not be possible for investors to effect service of process within the United States upon us or those persons. Furthermore, it may not be possible for investors to enforce against us or those persons not in the United States, judgments obtained in U.S. courts based upon the civil liability provisions of the U.S. federal securities laws or other laws of the United States. There is doubt as to the enforceability, in original actions in Canadian courts, of liabilities based upon U.S. federal securities laws and as to the enforceability in Canadian courts of judgments of U.S. courts obtained in actions based upon the civil liability provisions of the U.S. federal securities laws. Therefore, it may not be possible to enforce those actions against us, certain of our directors and officers or the experts named in this prospectus.
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Future sales, or the perception of future sales, of common shares in the public market by Claudio Erba, our Chief Executive Officer, or Alessio Artuffo, our President and Chief Revenue Officer, could cause the price of our common shares to decline.
Mr. Erba and Mr. Artuffo are currently party to certain lock-up agreements with the underwriters from our initial public offering in October 2019, as supplemented in connection with our bought deal offering from August 2020. It is possible that Mr. Erba or Mr. Artuffo will sell common shares from time to time during this offering following either (a) the expiry of the lock-up periods under their existing lock-up agreements or (b) the waiver of the provisions of the “lock-up” restrictions contained in their existing lock-up agreements by the applicable underwriters, our board of directors and/or the Selling Shareholder to allow them to sell common shares, all in accordance with the terms of the existing lock-up agreements. There are no pre-established conditions for the grant of such a waiver by us, the applicable underwriters or the Selling Shareholder, and any decision by us, the applicable underwriters or the Selling Shareholder to waive those conditions will depend on a number of factors, including market conditions, the market performance of our common shares and our financial condition. Upon expiry of the applicable lock-up periods or upon any waiver of the lock-up restrictions of Mr. Erba or Mr. Artuffo, additional common shares will be available for sale into the public market, subject to applicable securities laws. If the holders of these common shares sell them or are perceived by the market as intending to sell them, the prevailing market price for our common shares could decline. These factors could also make it more difficult for us to raise additional funds through future offerings of common shares in the future at a time and at a price that we deem appropriate.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, and the documents incorporated by reference herein, including those that express a belief, expectation or intention, as well as those that are not statements of historical fact, are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. All statements other than statements of historical facts contained in this prospectus, and the documents incorporated by reference herein, including statements regarding our future results of operations and financial condition, business strategy and plans and objectives of management for future operations, are forward-looking statements. In some cases, forward-looking statements may be identified by words such as “anticipate,” “believe,” “continue,” “could,” “design,” “estimate,” “expect,” “intend,” “may,” “plan,” “potentially,” “predict,” “project,” “should,” “will” or the negative of these terms or other similar expressions.
We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial needs. These forward-looking statements are subject to a number of known and unknown risks, uncertainties and assumptions, including risks described in the section titled “Risk Factors” and elsewhere in this prospectus and in our most recent Annual Information Form included as an exhibit to the applicable Annual Report on Form 40-F, as may be updated by our subsequent reports on Form 6-K and other filings we make with the Commission, which are incorporated by reference into this prospectus in their entirety. These factors include, among other things, but are not limited to:
| • | our ability to build our market share and enter new markets and industry verticals; |
| • | our ability to retain key personnel; |
| • | our ability to maintain and expand geographic scope; |
| • | our ability to execute on our expansion plans; |
| • | our ability to continue investing in infrastructure to support our growth; |
| • | our ability to obtain and maintain existing financing on acceptable terms; |
| • | our ability to execute on profitability initiatives; |
| • | the impact of competition; |
| • | the effectiveness of mitigation strategies undertaken with respect to COVID-19, and the severity, duration and impacts of COVID-19 on the economy and our business, which is highly uncertain and cannot reasonably be predicted; |
| • | our ability to respond to the changes and trends in our industry or the global economy; |
| • | the changes in laws, rules, regulations, and global standards; |
| • | our ability to execute our growth strategies; |
| • | the impact of changing conditions in the global corporate e-learning market; |
| • | increasing competition in the global corporate e-learning market in which we operate; |
| • | fluctuations in currency exchange rates and volatility in financial markets (including changes in interest rates); |
| • | changes in the attitudes, financial condition and demand of our target market; and |
| • | developments and changes in applicable laws and regulations. |
If any of these risks or uncertainties materialize, or if the opinions, estimates or assumptions underlying the forward-looking information prove incorrect, actual results or future events might vary materially from those
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anticipated in the forward-looking information. The opinions, estimates or assumptions referred to above and described in greater detail in the section titled “Risk Factors” in this prospectus and in the documents incorporated by reference into this prospectus should be considered carefully by prospective investors.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. Forward-looking information is provided for the purpose of presenting information about management’s current expectations and plans relating to the future and allowing investors and others to get a better understanding of our anticipated financial position, results of operations and operating environment. Readers are cautioned that such information may not be appropriate for other purposes.
Although we have attempted to identify important risk factors that could cause actual results to differ materially from those contained in forward-looking information, there may be other risk factors not presently known to us or that we presently believe are not material that could also cause actual results or future events to differ materially from those expressed in such forward-looking information. There can be no assurance that such information will prove to be accurate, as actual results and future events could differ materially from those anticipated in such information. Accordingly, prospective investors should not place undue reliance on forward-looking information, which speaks only as of the date made. The forward-looking information represents our expectations as of the date of this prospectus (or as of the date they are otherwise stated to be made), and are subject to change after such date. However, we disclaim any intention or obligation or undertaking to update or revise any forward-looking information whether as a result of new information, future events or otherwise, except as required under applicable securities laws.
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We will not receive any proceeds from the sale of common shares by the Selling Shareholder. The Selling Shareholder will receive all of the proceeds from the offering of common shares. For more information about the Selling Shareholder, see the section titled “Selling Shareholder”.
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The following description of our common shares is intended as a summary only. This summary is qualified in its entirety by reference to our articles of incorporation, as amended, and our by-laws, both of which have been filed as exhibits to the registration statement of which this prospectus forms a part.
Rank
The common shares rank pari passu with respect to the payment of dividends, return of capital and distribution of assets in the event of our liquidation, dissolution or winding-up.
Dividend Rights
Holders of common shares are entitled to receive dividends on a pari passu basis out of our assets legally available for the payment of dividends at such times and in such amount and form as our board of directors may from time to time determine, subject to any preferential rights of the holders of any outstanding preferred shares.
Voting Right
Holders of common shares are entitled to one vote in respect of each common share held at meetings of shareholders.
Meetings of Shareholders
Holders of common shares are entitled to receive notice of any meeting of shareholders and may attend and vote at such meetings. A quorum for the transaction of business at a meeting of shareholders is present if two or more shareholders who, together, hold not less than 25% of the votes attaching to our outstanding common shares entitled to vote at the meeting are present in person or represented by proxy.
Pre-Emptive Rights
Certain holders of common shares are entitled to certain pre-emptive rights to subscribe for additional common shares as set forth in that certain Investor Rights Agreement among the Company and certain shareholders thereof dated October 8, 2019. See our most recent Annual Information Form included as an exhibit to the applicable Annual Report on Form 40-F for further information.
Liquidation Rights
Upon our liquidation, dissolution or winding-up, whether voluntary or involuntary, the holders of common shares, without preference or distinction, are entitled to receive ratably all of our assets remaining after payment of all debts and other liabilities, subject to any preferential rights of the holders of any outstanding preferred shares.
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The Selling Shareholder, Intercap Equity Inc., beneficially owns 13,589,920 common shares (representing 41.4% of common shares outstanding) prior to the offering, is offering up to 2,985,074 common shares (representing 9.1% of common shares outstanding) in the offering (based on an assumed offering price of $67.00 per share, the last reported sale price of our common shares on Nasdaq as of January 3, 2022), and will beneficially own 10,604,846 common shares after this offering (representing 32.3% of common shares outstanding) assuming all of the shares covered hereby are sold (based on the above assumed offering price per share). The Selling Shareholder may sell some, all or none of its shares. We do not know how long the Selling Shareholder will hold the shares before selling them or the prices at which the Selling Shareholder may sell the shares in this offering.
Percentage ownership is based on 32,856,681 common shares outstanding as of December 31, 2021. Beneficial ownership of the Selling Shareholder is determined in accordance with Rule 13d-3(d) under the Exchange Act. As used in this prospectus, the term Selling Shareholder includes donees, pledgees, assignees, transferees, distributees and successors-in-interest of the Selling Shareholder that receive shares in any non-sale transfer after the date of this prospectus. The address for the Selling Shareholder is 261 Davenport Road, Suite 200, Toronto, Ontario. Jason Chapnik, Chairman of our board of directors, beneficially owns, controls or directs, directly or indirectly, all of the equity interests of Intercap Equity Inc.
The Selling Shareholder may enter into financing arrangements in the future, which arrangements may include pledging some or all of the shares covered by this prospectus as collateral for such financing arrangements; accordingly, in such a circumstance, the Selling Shareholder may not be able to sell all such shares covered by this prospectus. The lenders in any such financing arrangement may include affiliates of the Sales Agents named in this prospectus.
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We and the Selling Shareholder have entered into the Equity Distribution Agreement with the Sales Agents under which the Selling Shareholder may offer and sell common shares having an aggregate sales price of up to $200,000,000 from time to time through or to the Sales Agents.
Upon delivery of a placement notice and subject to the terms and conditions of the Equity Distribution Agreement, the Sales Agents may sell common shares by any method permitted by law, including privately negotiated transactions, which may include block trades, or transactions that are deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act, including without limitation sales made directly on Nasdaq or any other existing trading market of our common shares, sales to or through a market maker other than on an exchange or in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices. However, no sales will be made through a stock exchange or stock market in Canada. The Selling Shareholder may instruct the Sales Agents not to sell common shares if the sales cannot be effected at or above the price designated by the Selling Shareholder from time to time. The Selling Shareholder or the Sales Agents may suspend the offering of common shares upon notice and subject to other conditions.
The Equity Distribution Agreement provides that the Selling Shareholder will pay the Sales Agents commissions for their services in acting as agents in the sale of common shares. The Sales Agents will be entitled to compensation at a fixed commission rate not to exceed 3.00% of the gross proceeds of each sale of common shares pursuant to the Equity Distribution Agreement. Because there is no minimum offering amount required to be sold pursuant to this offering, the actual total public offering amount, commissions and proceeds to the Selling Shareholder, if any, are not determinable at this time. The Selling Shareholder has agreed to reimburse the Sales Agents for the fees and disbursements of their legal counsel in an amount up to $140,000, in addition to certain ongoing disbursements of their legal counsel. The Selling Shareholder has also agreed to reimburse the Sales Agents up to $5,000 of the reasonable fees and disbursements of the Sales Agents’ counsel in connection with the review by the Financial Industry Regulatory Authority, or FINRA. The remaining expenses of the offering, excluding compensation and reimbursement payable to the Sales Agents under the terms of the Equity Distribution Agreement, are estimated to be approximately $375,000, and will be borne by the Selling Shareholder. See the section titled “Expenses.”
Settlement for sales of common shares will generally occur on the second business day following the date on which any sales are made, or on some other date that is agreed upon by the Selling Shareholder and the Sales Agents in connection with a particular transaction, in return for payment of the net proceeds to the Selling Shareholder. Sales of common shares as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as the Selling Shareholder and the Sales Agents may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
The Sales Agents will use their commercially reasonable efforts, consistent with their normal trading and sales practices, to solicit offers to purchase common shares under the terms and subject to the conditions set forth in the Equity Distribution Agreement. In connection with the sale of the common shares on behalf of the Selling Shareholder, the Sales Agents will be deemed to be “underwriters” within the meaning of the Securities Act and the compensation of the Sales Agents will be deemed to be underwriting commissions or discounts. We and the Selling Shareholder have agreed to provide indemnification and contribution to the Sales Agents against certain civil liabilities, including liabilities under the Securities Act.
The offering of common shares pursuant to the Equity Distribution Agreement will terminate upon the termination of the Equity Distribution Agreement or as otherwise permitted therein. We, the Selling Shareholder and the Sales Agents each may terminate the Equity Distribution Agreement at any time upon five days’ prior notice.
The Sales Agents and their affiliates have provided, and may in the future provide, various investment banking, commercial banking and other financial services for us and our affiliates, for which services they have received, or may in the future receive, customary fees. To the extent required by Regulation M promulgated under the Exchange Act, the Sales Agents will not engage in any market making activities involving the common shares while the offering is ongoing under this prospectus.
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CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary, as of the date hereof, of the principal Canadian federal income tax considerations under the Income Tax Act (Canada) and the regulations thereunder, or collectively, the Tax Act, generally applicable to a holder who acquires, as beneficial owner, common shares pursuant to this offering and who, for the purposes of the Tax Act and at all relevant times, (i) holds their common shares as capital property, (ii) deals at arm’s length with the Company, the Selling Shareholder and the Sales Agents, (iii) is not affiliated with the Company, the Selling Shareholder or the Sales Agents, (iv) is not, and is not deemed to be, a resident of Canada, (v) has not entered into and will not enter into, with respect to their common shares, a “derivative forward agreement” or a “synthetic disposition arrangement” each as defined under the Tax Act, and (vi) does not and will not use or hold, and is not and will not be deemed to use or hold, common shares in connection with, or in the course of carrying on, a business or part of a business in Canada, or each, a Non-Resident Holder. This summary does not apply to a Non-Resident Holder that carries on an insurance business in Canada and elsewhere or an “authorized foreign bank”.
Generally, the common shares will be considered to be capital property to a Non-Resident Holder unless they are held or acquired or deemed to be held or acquired in the course of carrying on a business of trading or dealing in securities or as part of an adventure or concern in the nature of trade.
The term “U.S. Holder,” for the purposes of this section, means a Non-Resident Holder who, for purposes of the Canada-United States Income Tax Convention (1980), as amended, or the Convention, is, at all relevant times, a resident of the United States and a “qualifying person” within the meaning of the Convention. Non-Resident Holders who are residents of the United States are urged to consult with their own tax advisors to determine their entitlement to benefits under the Convention based on their particular circumstances.
This summary is based upon the current provisions of the Tax Act, the current provisions of the Convention, and an understanding of the current published administrative and assessing policies and practices of the Canada Revenue Agency. The summary also takes into account all specific proposals to amend the Tax Act that have been publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, or the Tax Proposals, and assumes that all such Tax Proposals will be enacted in the form proposed. No assurance can be given that the Tax Proposals will be enacted in the form proposed or at all. This summary does not otherwise take into account or anticipate any changes in law, whether by way of legislative, judicial or administrative action or interpretation, nor does it address any provincial, territorial or foreign tax considerations.
This summary is of a general nature only and is not intended to be, nor should it be construed to be, legal or tax advice to any particular Non-Resident Holder, and no representations are made concerning the income tax consequences to any particular Non-Resident Holder or prospective Non-Resident Holder. This summary is not exhaustive of all Canadian federal income tax considerations applicable to the acquisition, holding and disposition of common shares. Accordingly, Non-Resident Holders are urged to consult with their own tax advisors about the specific tax consequences to them of acquiring, holding and disposing of common shares.
Currency Conversion
For purposes of the Tax Act, all amounts relating to the acquisition, holding or disposition of common shares, including dividends, cost, adjusted cost base and proceeds of disposition, must be determined in Canadian dollars based on the exchange rate quoted by the Bank of Canada on the relevant date (or, if there is no such rate quoted for the relevant date, the closest preceding date for which such a rate is quoted) or such other rate of exchange that is acceptable to the Minister of National Revenue.
Dividends on Common Shares
A dividend paid or credited, or deemed to be paid or credited, on a common share to a Non-Resident Holder will be subject to Canadian withholding tax under the Tax Act at the rate of 25% of the gross amount of the dividend, subject to any reduction in the rate of withholding to which the Non-Resident Holder is entitled under an applicable income tax treaty or convention between Canada and the country in which the Non-Resident Holder is resident. Under the Convention, a U.S. Holder generally will be subject to Canadian withholding tax at a rate of 15% of the gross amount of the dividend (or 5% in the case of a U.S. Holder that is a company beneficially owning at least 10% of the
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Company’s voting shares). Non-Resident Holders who may be eligible for a reduced rate of withholding tax on dividends (if any) pursuant to any applicable income tax treaty or convention should consult their own tax advisors having regard to their particular circumstances.
Dispositions of Common Shares
Upon a disposition (or a deemed disposition) of a common share (other than a disposition of common shares to the Company unless purchased by the Company in the open market in the manner in which shares are normally purchased by any member of the public in the open market), a Non-Resident Holder generally will realize a capital gain (or a capital loss) equal to the amount by which such Non-Resident Holder’s proceeds of disposition of the common share, net of any reasonable costs of disposition, exceed (or are less than) the adjusted cost base of the common share to the Non-Resident Holder immediately before the disposition or deemed disposition. For this purpose, the adjusted cost base to a Non-Resident Holder of a common share will be determined at any particular time by averaging the cost of such share with the adjusted cost base of all other common shares owned by the Non-Resident Holder as capital property at that time. The Non-Resident Holder’s cost for the purposes of the Tax Act of common shares generally will include all amounts paid or payable by the Non-Resident Holder for the common shares, subject to certain adjustments under the Tax Act.
A Non-Resident Holder will not be subject to tax under the Tax Act in respect of any capital gain realized by such Non-Resident Holder on a disposition or deemed disposition of a common share unless the common share constitutes “taxable Canadian property” (as defined in the Tax Act) to the Non-Resident Holder at the time of disposition, and the Non-Resident Holder is not entitled to relief under an applicable income tax treaty or convention between Canada and the country in which the Non-Resident Holder is resident. In addition, capital losses arising on the disposition or deemed disposition of a common share will not be recognized under the Tax Act unless the common share constitutes “taxable Canadian property” to the Non-Resident Holder thereof for purposes of the Tax Act.
Generally, a common share will not constitute taxable Canadian property to a Non-Resident Holder at any particular time provided that the common share is listed on a “designated stock exchange” for the purposes of the Tax Act (which currently includes the TSX and Nasdaq), unless at any time during the 60-month period immediately preceding such time: (a) at least 25% or more of the issued shares of any class or series of the capital stock of the Company was owned by or belonged to any combination of (x) the Non-Resident Holder, (y) persons with whom the Non-Resident Holder did not deal at arm’s length (for the purposes of the Tax Act), and (z) partnerships in which the Non-Resident Holder or a person described in (y) holds a membership interest directly or indirectly through one or more partnerships; and (b) more than 50% of the fair market value of the common share was derived, directly or indirectly, from one, or any combination of, real or immovable property situated in Canada, Canadian resource property (as defined in the Tax Act), timber resource property (as defined in the Tax Act) or options in respect of, interests in or for civil law rights in any such property (whether or not such property exists). Notwithstanding the foregoing, a common share may be deemed to be taxable Canadian property in certain circumstances set out in the Tax Act.
Non-Resident Holders whose common shares may constitute taxable Canadian property should consult their own tax advisors.
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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES TO U.S. HOLDERS OF OUR COMMON SHARES
Material U.S. Federal Income Tax Considerations for U.S. Holders
This discussion describes the material U.S. federal income tax considerations for U.S. Holders (as defined below) of holding and disposing of our common shares held as capital assets for tax purposes (generally, property held for investment). This discussion is based on the Internal Revenue Code of 1986, as amended, or the Code, administrative pronouncements, judicial decisions, final, temporary and proposed Treasury Regulations and the income tax treaty between the United States and Canada, or the Treaty, all as of the date hereof, changes to any of which may affect the tax considerations described herein, possibly with retroactive effect. This discussion further assumes that the representations in the deposit agreement are true and that the obligations in the deposit agreement and any related agreement will be complied with in accordance with their terms.
This discussion does not address all tax considerations relevant to acquiring common shares, such as alternative minimum, estate and gift, Medicare contribution, U.S. state and local or non-U.S. tax considerations, the special accounting rules under Section 451(b) of the Code or tax considerations applicable to U.S. Holders subject to special rules, such as:
| • | banks, insurance companies and certain other financial institutions; |
| • | pension plans; |
| • | cooperatives; |
| • | U.S. expatriates and certain former citizens or long-term residents of the United States; |
| • | dealers or traders in securities who use a mark-to-market method of tax accounting; |
| • | persons holding common shares as part of a hedging transaction, “straddle,” wash sale, conversion transaction or integrated transaction or persons entering into a constructive sale with respect to common shares; |
| • | persons whose “functional currency” for U.S. federal income tax purposes is not the U.S. dollar; |
| • | brokers, dealers or traders in securities, commodities or currencies; |
| • | tax-exempt entities (including private foundations) or government organizations; |
| • | S corporations, partnerships or other entities or arrangements classified as partnerships for U.S. federal income tax purposes (and investors therein); |
| • | regulated investment companies or real estate investment trusts; |
| • | persons who acquired common shares pursuant to the exercise of any employee stock option or otherwise as compensation; |
| • | persons who own or are deemed to own ten percent or more of our stock (by vote or value); and |
| • | persons holding our common shares in connection with a trade or business, permanent establishment or fixed base outside the United States. |
If a partnership (or an entity classified as a partnership for U.S. federal income tax purposes) holds common shares, the U.S. federal income tax treatment of the partner in the partnership will generally depend on the status of the partner and the activities of the partnership. Partnerships holding our common shares and partners in such partnerships are encouraged to consult their tax advisors as to the particular U.S. federal income tax considerations of holding and disposing of our common shares.
A “U.S. Holder” is a beneficial owner of common shares for U.S. federal income tax purposes that is:
(1) an individual who is a citizen or resident of the United States;
(2) a corporation or an entity classified as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States, any state therein or the District of Columbia;
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(3) an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
(4) a trust if (i) a U.S. court is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have authority to control all substantial decisions of the trust or (ii) the trust has a valid election to be treated as a U.S. person under applicable U.S. Treasury Regulations.
Passive Foreign Investment Company Rules
Under the Code, we will be a passive foreign investment company, or a PFIC, for any taxable year in which (1) 75% or more of our gross income consists of passive income or (2) 50% or more of the value of our assets (generally determined on the basis of a weighted quarterly average) consists of assets that produce, or are held for the production of, passive income. For purposes of these tests, passive income generally includes dividends, interest, certain gains from the sale or exchange of investment property and certain rents and royalties (subject to an exception for certain rents and royalties derived in the active conduct of a trade or business), and passive assets generally include cash and cash equivalents. Additionally, for purposes of these tests, a non-U.S. corporation that directly or indirectly owns at least 25% by value of the stock of another corporation is treated as holding and receiving directly its proportionate share of the assets and income, respectively, of such other corporation. If we are a PFIC for any taxable year during which a U.S. Holder holds our common shares, the U.S. Holder may be subject to adverse tax consequences, regardless of whether we continue to qualify as a PFIC in future years, including ineligibility for any preferential tax rates on capital gains or actual or deemed dividends, interest charges on certain taxes treated as deferred and additional reporting requirements.
We believe we were not a PFIC for our taxable year ending December 31, 2021. The determination of whether we are a PFIC is fact-intensive and made on an annual basis applying principles and methodologies that in some circumstances are unclear and subject to varying interpretation. For instance, for our current and future taxable years, the total value of our assets, including goodwill, may be determined in part by reference to the market price of our common shares from time to time, which may fluctuate considerably. If our market capitalization declines while we hold a substantial amount of cash and cash-equivalents for any taxable year, we may be a PFIC for that taxable year. Furthermore, our PFIC status depends on the composition of our income for the relevant taxable year, which will depend on the transactions we enter into in the future and our corporate structure. How we spend the cash we raise in any offering also affects the composition of our income and assets. Even if we determine that we are not a PFIC for a taxable year, there can be no assurance that the Internal Revenue Service, or IRS, will agree with our conclusion and that the IRS would not successfully challenge our position. Accordingly, we cannot provide any assurance that we will not be a PFIC for the current or any prior or future taxable year, and our U.S. counsel expresses no opinion with respect to our PFIC status for past, current or future taxable years.
If we are a PFIC in any taxable year with respect to which a U.S. Holder holds our common shares, we will continue to be a PFIC with respect to the U.S. Holder in all succeeding taxable years during which the U.S. Holder holds our common shares, regardless of whether we continue to qualify as a PFIC, unless we cease to be a PFIC and the U.S. Holder has made a “deemed sale” election under the PFIC rules. If we cease to be a PFIC and the U.S. Holder makes a deemed sale election, the U.S. Holder will be deemed to have sold our common shares at their fair market value and any gain from such deemed sale would be subject to the rules described below. After the deemed sale election, so long as we do not become a PFIC in a subsequent taxable year, the U.S. Holder’s common shares with respect to which the election was made will not be treated as shares in a PFIC and the U.S. Holder will not be subject to the rules described below with respect to any “excess distribution” the U.S. Holder receives from us or any gain from an actual sale or other disposition of our common shares. U.S. Holders are encouraged to consult their tax advisors as to the possibility and consequences of making a deemed sale election if we are a PFIC and cease to be a PFIC and such election becomes available.
For each taxable year in which we are a PFIC with respect to a U.S. Holder, the U.S. Holder will be subject to special tax rules with respect to any “excess distribution” the U.S. Holder receives from us and any gain the U.S. Holder recognizes from a sale or other disposition (including a pledge) of our common shares, unless (i) the U.S. Holder makes a “qualified electing fund” election, or QEF Election (as discussed below), with respect to all taxable years during the U.S. Holder’s holding period in which we are a PFIC, or (ii) our common shares constitute “marketable stock” and the U.S. Holder makes a mark-to-market election (as discussed below). If we are a PFIC, distributions a U.S. Holder receives from us in a taxable year that are greater than 125% of the average annual
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distributions the U.S. Holder received during the shorter of the three preceding taxable years or the U.S. Holder’s holding period for our common shares will be treated as an excess distribution. Under these special tax rules:
| • | the excess distribution or gain will be allocated ratably over the U.S. Holder’s holding period for our common shares; |
| • | the amount allocated to the taxable year of “excess distribution” or disposition and any taxable year prior to the first taxable year in which we became a PFIC will be treated as ordinary income; and |
| • | the amount allocated to each other taxable year will be subject to the highest tax rate in effect for that year and the interest charge generally applicable to underpayments of tax will be imposed on the resulting tax attributable to each such year. |
The tax liability for amounts allocated to taxable years prior to the taxable year of “excess distribution” or disposition cannot be offset by any net operating losses for such years, and gains (but not losses) realized on the sale of our common shares cannot be treated as capital gains, even if the U.S. Holder holds our common shares as capital assets.
If we are a PFIC, a U.S. Holder will generally be subject to similar rules with respect to distributions we receive from, and our dispositions of the stock of, any of our direct or indirect subsidiaries or any other entities in which we hold equity interests that are also PFICs (each, a “lower-tier PFIC”), as if such distributions were indirectly received by, and/or dispositions were indirectly carried out by, the U.S. Holder. U.S. Holders are encouraged to consult their tax advisors as to the application of the PFIC rules to lower-tier PFICs.
A U.S. Holder can avoid the interest charge on excess distributions or gain relating to the common shares by making a mark-to-market election with respect to the common shares, provided that the common shares are “marketable stock.” common shares will be marketable stock if they are “regularly traded” on certain U.S. stock exchanges or on a non-U.S. stock exchange that meets certain conditions. For these purposes, the common shares will be considered regularly traded during any calendar year during which they are traded, other than in de minimis quantities, on at least 15 days during each calendar quarter. Any trades that have as one of their principal purposes meeting this requirement will be disregarded. Our common shares will be listed on Nasdaq, which is a qualified exchange for these purposes. Consequently, if our common shares remain listed on Nasdaq and are regularly traded, we expect the mark-to-market election would be available to U.S. Holders of our common shares if we are a PFIC. U.S. Holders are encouraged to consult their tax advisors as to whether a mark-to-market election is available or advisable with respect to our common shares.
A U.S. Holder that makes a mark-to-market election must include in ordinary income for each taxable year in which we are a PFIC an amount equal to the excess, if any, of the fair market value of the common shares at the close of the taxable year over the U.S. Holder’s adjusted tax basis in the common shares. An electing U.S. Holder may also claim an ordinary loss deduction for the excess, if any, of the U.S. Holder’s adjusted basis in the common shares over the fair market value of the common shares at the close of each taxable year in which we are a PFIC, but this deduction is allowable only to the extent of any net mark-to-market gains for prior years. Gains from an actual sale or other disposition of our common shares in any taxable year in which we are a PFIC will be treated as ordinary income, and any losses incurred on a sale or other disposition of our common shares will be treated as ordinary losses to the extent of any net mark-to-market gains for prior years. Once made, the election cannot be revoked without the consent of the IRS unless the common shares cease to be marketable stock.
However, a mark-to-market election generally cannot be made for equity interests in any lower-tier PFICs that we own, unless shares of such lower-tier PFIC are themselves “marketable stock.” As a result, even if a U.S. Holder validly makes a mark-to-market election with respect to our common shares, the U.S. Holder may continue to be subject to the PFIC rules (described above) with respect to its indirect interest in any of our investments that are treated as an equity interest in a PFIC for U.S. federal income tax purposes. U.S. Holders should consult their tax advisors as to the availability and desirability of a mark-to-market election, as well as the impact of such election on interests in any lower-tier PFICs.
A U.S. Holder can also avoid the interest charge on excess distributions or gain relating to the common shares by making a QEF Election; however, we do not expect to provide the information necessary for U.S. Holders to make such election.
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Unless otherwise provided by the U.S. Treasury, each U.S. shareholder of a PFIC is required to file an annual report containing such information as the U.S. Treasury may require. A U.S. Holder’s failure to file the annual report may result in substantial penalties and extend the statute of limitations with respect to the U.S. Holder’s federal income tax return. U.S. Holders should consult their tax advisors regarding the requirements of filing such information returns under these rules.
WE STRONGLY URGE YOU TO CONSULT YOUR TAX ADVISOR REGARDING THE IMPACT OF OUR PFIC STATUS ON YOUR INVESTMENT IN THE COMMON SHARES AS WELL AS THE APPLICATION OF THE PFIC RULES TO YOUR INVESTMENT IN THE COMMON SHARES.
Taxation of Distributions
As described under “Dividend Policy,” we do not expect to pay dividends in the foreseeable future. Subject to the discussion above under “Passive foreign investment company rules,” distributions paid on common shares, other than certain distributions of common shares, will generally be treated as dividends to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Because we do not intend to calculate our earnings and profits under U.S. federal income tax principles, we expect that distributions generally will be reported to U.S. Holders as dividends. Subject to applicable limitations, including conditions relating to holding period and the absence of certain risk reduction transactions, dividends paid to certain non-corporate U.S. Holders may be taxable at preferential rates applicable to “qualified dividend income” received from a “qualified foreign corporation.” However, the qualified dividend income treatment will not apply if we are (or are treated with respect to the U.S. Holder as) a PFIC for our taxable year of the distribution or the preceding taxable year. The amount of the dividend will be treated as foreign-source dividend income to U.S. Holders and will not be eligible for the dividends-received deduction generally available to U.S. corporations under the Code. Dividends will generally be included in a U.S. Holder’s income on the date of the U.S. Holder’s actual or constructive receipt of the dividend. The amount of any dividend income paid in foreign currency will be the U.S. dollar amount calculated by reference to the exchange rate in effect on the date of actual or constructive receipt, regardless of whether the payment is in fact converted into U.S. dollars. If the dividend is converted into U.S. dollars on the date of receipt, a U.S. Holder should not be required to recognize foreign currency gain or loss in respect of the dividend income. A U.S. Holder may have foreign currency gain or loss if the dividend is converted into U.S. dollars after the date of receipt. Such gain or loss would generally be treated as U.S.-source ordinary income or loss. The amount of any distribution of property other than cash (and other than certain pro rata distributions of common shares or rights to acquire common shares) will be the fair market value of such property on the date of distribution. For foreign tax credit purposes, our dividends will generally be treated as passive category income.
Sale or Other Taxable Disposition of Common Shares
Subject to the discussion above under “Passive foreign investment company rules,” gain or loss realized on the sale or other taxable disposition of common shares will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder held the common shares for more than one year. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the common shares disposed of and the amount realized on the disposition, in each case as determined in U.S. dollars. Subject to the discussion above under “Passive investment company rules,” long-term capital gain of non-corporate U.S. Holders is generally eligible under current law for taxation at preferential rates. This gain or loss will generally be U.S.-source gain or loss for foreign tax credit purposes. The deductibility of capital losses is subject to limitations.
If the consideration received by a U.S. Holder is not paid in U.S. dollars, the amount realized will be the U.S. dollar value of the payment received determined by reference to the spot rate of exchange on the date of the sale or other disposition. However, if the common shares are treated as traded on an “established securities market” and the U.S. Holder is either a cash basis taxpayer or an accrual basis taxpayer that has made a special election (which must be applied consistently from year to year and cannot be changed without the consent of the IRS), the U.S. Holder will determine the U.S. dollar value of the amount realized in a non-U.S. dollar currency by translating the amount received at the spot rate of exchange on the settlement date of the sale. If the U.S. Holder is an accrual basis taxpayer that is not eligible to or does not elect to determine the amount realized using the spot rate on the settlement date, the U.S. Holder will recognize foreign currency gain or loss to the extent of any difference between the U.S. dollar amount realized on the date of sale or disposition and the U.S. dollar value of the currency received at the spot rate on the settlement date.
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Information Reporting and Backup Withholding
Payments of dividends or sales proceeds within the United States or through certain U.S.-related financial intermediaries are generally subject to information reporting and may be subject to backup withholding, unless (i) the U.S. Holder is a corporation or other exempt recipient or (ii) in the case of backup withholding, the U.S. Holder provides a correct taxpayer identification number and certifies that it is not subject to backup withholding. Backup withholding is not an additional tax. The amount of any backup withholding from a payment to the U.S. Holder will be allowed as a credit against the U.S. Holder’s U.S. federal income tax liability and may entitle the U.S. Holder to a refund, provided that the required information is timely furnished to the IRS.
Certain U.S. Holders that are individuals or certain closely held entities may be required to report information relating to our common shares, subject to certain exceptions (including an exception for common shares held in accounts maintained by financial institutions, in which case the accounts themselves may have to be reported if maintained by non-U.S. financial institutions). Such U.S. Holders who fail to timely furnish the required information may be subject to a penalty, and the statute of limitations applicable to such U.S. Holders’ tax returns to which such information relates may not close until three years after such information is filed.
U.S. Holders are encouraged to consult their tax advisors as to their information reporting and backup withholding obligations with respect to holding and disposing of our common shares in their particular circumstances.
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Certain legal matters relating to this offering will be passed upon on our behalf by Goodmans LLP, Toronto, Ontario with respect to Canadian legal matters and Cooley LLP, Palo Alto, California with respect to U.S. legal matters. The Sales Agents are being represented in this offering by Stikeman Elliott LLP with respect to Canadian legal matters and Skadden, Arps, Slate, Meagher & Flom LLP with respect to U.S. legal matters.
The consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 40-F for the year ended December 31, 2020 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
PricewaterhouseCoopers LLP resigned as the Company’s auditor on March 31, 2021, which resignation the Company’s board of directors accepted on such date. The Company’s board of directors appointed KPMG LLP as the Company’s auditor on March 31, 2021 to hold office until the next annual meeting of shareholders of the Company.
The following is a statement of the estimated expenses, other than commissions payable to the Sales Agents, that are expected to be incurred in connection with the distribution of the common shares registered under this registration statement of which this prospectus forms a part. All amounts are estimated other than the Commission registration fee and the FINRA filing fee.
| Commission registration fee |
$ | 18,540 | ||
| FINRA filing fees |
30,500 | |||
| Printing expenses |
25,000 | |||
| Legal fees and expenses |
350,000 | |||
| Accountants’ fees and expenses |
65,000 | |||
| Miscellaneous |
30,960 | |||
|
|
|
|||
| Total |
$ | 520,000 | ||
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|
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ENFORCEMENT OF CIVIL LIABILITIES
Certain of our operations and assets are located outside the United States, and certain of our officers, directors and shareholders, reside outside of the United States.
It may be difficult for investors who reside in the United States to effect service of process in the United States upon us, or to enforce a U.S. court judgment predicated upon the civil liability provisions of the U.S. federal securities laws against us or our directors and officers. There is substantial doubt whether an action could be brought in Canada in the first instance predicated solely upon U.S. federal securities laws.
Certain of our operations and assets are also located outside of Canada, and certain of our officers, directors and shareholders, reside outside of Canada.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus is part of the registration statement on Form F-3 we filed with the Commission under the Securities Act and does not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement or other document.
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In addition to the continuous disclosure obligations under the securities laws of the provinces and territories of Canada, we are subject to the informational reporting requirements of the Exchange Act, and in accordance therewith we file or furnish reports and other information with the Commission. Under the multijurisdictional disclosure system adopted by the United States and Canada, such reports and other information may be prepared in accordance with the disclosure requirements of the provincial and territorial securities regulatory authorities of Canada, which requirements are different from those of the United States. As a foreign private issuer, we are exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements, and our officers and directors are exempt from the reporting and short swing profit recovery provisions contained in Section 16 of the Exchange Act. Our reports and other information filed with or furnished to the Commission are available, and reports and other information filed or furnished in the future with or to the Commission will be available, from the Commission’s Electronic Document Gathering and Retrieval System (http://www.sec.gov). The information on the Commission’s web site is not part of this prospectus, and any references to this web site or any other web site are inactive textual references only.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We incorporate by reference in this prospectus information from other documents we file with or furnish to the Commission, which means that we can disclose important information to you by referring to those documents. The information we incorporate by reference is an important part of this prospectus.
We incorporate by reference into this prospectus the following documents we have filed with or furnished to the Commission:
| • | the description of our common shares as described in Item 1 of our registration statement on Form 8-A (File No. 001-39750) filed with the Commission on December 1, 2020, and any amendment or report filed with the Commission for the purpose of updating the description; |
| • | Our Annual Report on Form 40-F for the year ended December 31, 2020, filed with the Commission on March 11, 2021; |
| • | Exhibit 99.1 and Exhibit 99.2 to our Report on Form 6-K furnished to the Commission on May 13, 2021, containing, respectively, our Management’s Discussion and Analysis of Financial Condition and Results of Operations for the three months ended March 31, 2021 and our Unaudited Condensed Consolidated Financial Statements for the three months ended March 31, 2021 and the accompanying notes thereto; |
| • | Exhibit 99.1 and Exhibit 99.2 to our Report on Form 6-K furnished to the Commission on August 12, 2021, containing, respectively, our Management’s Discussion and Analysis of Financial Condition and Results of Operations for the three and six months ended June 30, 2021, and our Unaudited Condensed Consolidated Financial Statements for the three and six months ended June 30, 2021 and the accompanying notes thereto; |
| • | Exhibit 99.1 and Exhibit 99.2 to our Report on Form 6-K furnished to the Commission on November 12, 2021, containing, respectively, our Management’s Discussion and Analysis of Financial Condition and Results of Operations for the three and nine months ended September 30, 2021, and our Unaudited Condensed Consolidated Financial Statements for the three and nine months ended September 30, 2021 and the accompanying notes thereto. |
| • | Forms 6-K filed with the Commission on January 20, 2021, January 25, 2021, April 13, 2021, May 18, 2021, June 21, 2021, August 4, 2021, September 14, 2021 and September 21, 2021. |
We also incorporate by reference each of the following documents we file with or furnish to the Commission after the date of this prospectus and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold: (i) all Annual Reports on Form 40-F we file with the Commission; and (ii) those portions of any Reports on Form 6-K we furnish to the Commission that we indicate in such reports are to be deemed incorporated by reference into this prospectus.
Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently filed or furnished document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this prospectus, except as so modified or superseded.
Upon written or oral request, we will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all of the information that is incorporated by reference into this prospectus but not delivered with this prospectus (other than exhibits to those documents unless such exhibits are specially incorporated by reference in those documents), at no cost, by writing to or telephoning us at the following address:
Docebo Inc.
366 Adelaide St West, Suite 701
Toronto, Ontario, M5V 1R9
(800) 681-4601
Attention: Chief Financial Officer
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Up to $200,000,000
Common Shares
PRELIMINARY PROSPECTUS
Canaccord Genuity
ATB Capital Markets
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 8. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Business Corporations Act (Ontario), or the OBCA, the registrant may indemnify a present or former director or officer or a person who acts or acted at the registrant’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by that individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the registrant or other entity; provided that the individual acted honestly and in good faith with a view to the best interests of the registrant or, as the case may be, to the best interests of such other entity and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that the individual’s conduct was lawful. Such indemnification may be made in connection with a derivative action only with court approval. An individual is entitled to indemnification from the registrant as a matter of right if the individual was not judged by a court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done and the individual fulfilled the conditions set forth above. Under the OBCA, the registrant may advance money to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to above, but the individual must repay the money if the individual does not fulfil the conditions set forth above.
In accordance with and subject to the OBCA, the by-laws of the registrant provide for indemnification of a director or officer of the registrant, a former director or officer of the registrant, or a person who acts or acted at the registrant’s request as a director or officer, or an individual acting in a similar capacity, of another entity, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the registrant or other entity, if he acted honestly and in good faith with a view to the best interests of the registrant or, as the case may be, to the best interests of the other entity for which he acted as a director or officer or in a similar capacity at the registrant’s request.
The directors and officers of the registrant are covered by directors’ and officers’ insurance policies.
Reference is made to Item 10 for the undertakings of the registrant with respect to indemnification for liabilities arising under the Securities Act of 1933, as amended.
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ITEM 9. EXHIBITS
(a) EXHIBITS:
The following exhibits have been filed as part of this registration statement:
ITEM 10. UNDERTAKINGS
| (a) | The undersigned registrant hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b), if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(5) That, for the purpose of determining liability under the Securities Act to any purchaser:
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(6) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
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(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Toronto, Province of Ontario, Canada, on the 4th day of January, 2022.
| DOCEBO INC. | ||
| By: | /s/ Claudio Erba | |
| Claudio Erba | ||
| Chief Executive Officer | ||
Each person whose signature appears below constitutes and appoints Claudio Erba and Sukaran Mehta as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign the name of each of the undersigned in his or her capacity to any and all amendments (including any post-effective amendments) to this Registration Statement, and any registration statement for the same offering covered by this Registration Statement that is to be effective on filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended (and all post-effective amendments thereto), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or advisable to be done, as fully to all intents and purposes as the undersigned might or could do in person, and each of the undersigned hereby ratifies and confirms that the said attorney-in-fact or agent shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Claudio Erba Claudio Erba |
Director, President and Chief Executive Officer (Principal Executive Officer) |
January 4, 2022 | ||
| /s/ Sukaran Mehta Sukaran Mehta |
Interim Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
January 4, 2022 | ||
| /s/ Jason Chapnik Jason Chapnik |
Chair of the Board and Director | January 4, 2022 | ||
| /s/ James Merkur James Merkur |
Director | January 4, 2022 | ||
| /s/ Kristin Halpin Perry Kristin Halpin Perry |
Director | January 4, 2022 | ||
| /s/ Steven E. Spooner Steven E. Spooner |
Director | January 4, 2022 | ||
| /s/ William Anderson William Anderson |
Director | January 4, 2022 | ||
| /s/ Trisha Price Trisha Price |
Director | January 4, 2022 | ||
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this Registration Statement, solely in the capacity of the duly authorized representative of Docebo Inc. in the United States, on the 4th day of January, 2022.
| Docebo NA, Inc. | ||||
| (Authorized U.S. Representative) | ||||
| By: | /s/ Sukaran Mehta | |||
| Name: | Sukaran Mehta | |||
| Title: | Interim Chief Financial Officer | |||
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Exhibit 1.1
DOCEBO INC.
US$200,000,000
EQUITY DISTRIBUTION AGREEMENT
January 4, 2022
Canaccord Genuity LLC
99 High Street, Suite 1200
Boston, Massachusetts 02110
ATB Capital Markets USA Inc.
Suite 555, 100 Fillmore Street
Denver, Colorado 80206
Ladies and Gentlemen:
Docebo Inc., an Ontario corporation (the “Company”) and Intercap Equity Inc., an Ontario corporation (the “Selling Shareholder”), each confirms its agreement (this “Agreement”) with Canaccord Genuity LLC (“Canaccord”) and ATB Capital Markets USA Inc. (“ATB” and together with Canaccord, the “Agents”), as sales agents hereunder, for whom Canaccord is acting as representative of the Agents (the “Representative”), as follows:
1. Issuance and Sale of Shares. The Selling Shareholder proposes to sell, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, through the Agents, acting as sales agents, the Company’s common shares that are listed on the Nasdaq Stock Market under the symbol “DCBO” (the “Common Shares”) having an aggregate offering price of up to US$200,000,000 (the “Shares”). The Shares will be sold on the terms set forth herein at such times and in such amounts as the Selling Shareholder and the Agents shall agree from time to time. The sale of the Shares through the Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”).
2. Placements.
(a) Placement Notice. Each time that the Selling Shareholder wishes to sell Shares hereunder (each, a “Placement”), it will notify the Agents and the Company by email notice (or other method mutually agreed to in writing by the parties) containing the parameters within which it desires to sell the Shares, which shall at a minimum include the number of Shares (“Placement Shares”) to be sold, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which shall be mutually agreed upon by the Selling Shareholder and the Agents. The Placement Notice shall originate from any of the individuals (each an “Authorized Representative”) from the Selling Shareholder set forth on Schedule 1 (with a copy to each of the other individuals from the Selling Shareholder listed on such schedule and each of the individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agents set forth on Schedule 1 attached hereto, as such Schedule 1 may be amended from time to time. The Placement Notice shall be effective upon confirmation by the Agents unless and until (i) the Agents decline to accept the terms contained therein for any reason, in the sole discretion of the Representative, in accordance with the notice requirements set forth in Section 4, (ii) the entire amount of the Placement Shares have been sold, (iii) the Selling Shareholder suspends or terminates the Placement Notice in accordance with the notice requirements set forth in Section 4, (iv) the Selling Shareholder issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (v) the Agreement has been terminated under the provisions of Section 13.
(b) Placement Fee. The amount of compensation (the “Placement Fee”) to be paid by the Selling Shareholder to the Agents with respect to each Placement (in addition to any expense reimbursement) shall be set forth in the Placement Notice and be up to 3.0% of gross proceeds from each Placement.
(c) No Obligation. It is expressly acknowledged and agreed that neither the Selling Shareholder nor the Agents will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Selling Shareholder delivers a Placement Notice to the Agents, and then only upon the terms specified therein and herein. It is also expressly acknowledged that the Agents will be under no obligation to purchase Shares on a principal basis. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice control.
3. Sale of Placement Shares by the Agents. Subject to the terms and conditions of this Agreement, upon the Selling Shareholder’s issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agents will use their commercially reasonable efforts consistent with its normal trading and sales practices to sell on behalf of the Selling Shareholder and as agent, such Placement Shares up to the amount specified during the time period specified, and otherwise in accordance with the terms of such Placement Notice. The Selling Shareholder acknowledges that the Agents will conduct the sale of Placement Shares in compliance with applicable law, rules and regulations including, without limitation, all applicable United States state and federal securities laws, including the United States Securities Act of 1933, as amended (the “Securities Act”), the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including Regulation M thereunder) and the rules of the Nasdaq Global Select Market (“Principal Trading Market”) and that such compliance may include a delay in commencement of sales efforts after receipt of a Placement Notice. The Agents will provide written confirmation to the Selling Shareholder no later than the opening of the Trading Day next following the Trading Day on which they have made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Selling Shareholder to the Agents with respect to such sales, and the Net Proceeds (as defined below) payable to the Selling Shareholder. Subject to the terms and conditions of the Placement Notice, the Agents may offer and sell Placement Shares (i) in privately negotiated transactions with the consent of the Selling Shareholder, (ii) as block transactions, or (iii) by any other method permitted by law deemed to be an “at the market offering” under Rule 415 under the Securities Act, including without limitation sales made directly on or through the Principal Trading Market, on any other existing trading market for the Common Shares, sales to or through a market maker other than on an exchange or in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices. During the term of this Agreement, and notwithstanding anything to the contrary herein, the Agents agree that in no event will they or any of their affiliates engage in any market making, bidding, stabilization or other trading activity with regard to the Common Shares if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. Notwithstanding anything to the contrary set forth in this Agreement or a Placement Notice, each of the Company and the Selling Shareholder acknowledges and agrees that (i) there can be no assurance that the Agents will be successful in selling any Placement Shares or as to the price at which any Placement Shares are sold, if at all, and (ii) the Agents will incur no liability or obligation to the Company or the Selling Shareholder or any other person or entity if they do not sell Placement Shares for any reason other than a failure by the Agents to use their commercially reasonable efforts consistent with its normal trading and sales practices to sell on behalf of the Company or the Selling Shareholder and as agent such Placement Shares as provided under this Section 3. For the purposes hereof, “Trading Day” means any day on which the Principal Trading Market is open for trading.
4. Suspension of Sales. The Selling Shareholder or the Agents may, upon notice to the other party in writing, by telephone (confirmed immediately by verifiable facsimile transmission or e-mail) or by e-mail notice (or other method mutually agreed to in writing by the parties), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. The Selling Shareholder and the Agents agree that no such notice shall be effective against the other party unless it is made to one of the individuals named on Schedule 1 hereto (including an Authorized Representative of the Company), as such Schedule may be amended from time to time. Notwithstanding any other provision of this Agreement, the Selling Shareholder and the Agents agree that the Selling Shareholder shall not deliver any Placement Notice to the Agent or offer or sell, or instruct the Agents to offer or sell, any Shares, and the Agent shall not be obligated to place any Shares, in each case (i) during any period in which the Selling Shareholder is, or could be deemed to be, in possession of material non-public information, (ii) at any time commencing on the beginning of the Company’s quarterly “black out” period applicable to the Selling Shareholder as then in effect, and through and including the later of the end of such quarterly “black out” period as prescribed in the Company’s insider trading policy then in effect or (iii) at any time when the Company provides notice in writing to the Selling Shareholder and the Agents of the imposition of any special “black out” period applicable to the Selling Shareholder or the suspension of use of the Registration Statement (as defined herein).
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5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will occur on the second (2nd) Business Day (or such earlier day as is agreed by the parties to be industry practice for regular-way trading) following the date on which such sales are made (each a “Settlement Date”). The amount of proceeds to be delivered to the Selling Shareholder on a Settlement Date against the receipt of the Placement Shares sold (“Net Proceeds”) will be equal to the aggregate sales price at which such Placement Shares were sold, after deduction for (i) the Placement Fee or other compensation for such sales payable by the Selling Shareholder to the Agents, as the case may be, pursuant to Section 2 hereof, as the case may be, (ii) any other amounts due and payable by the Selling Shareholder to the Agents hereunder pursuant to Section 8(g) hereof, and (iii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(b) Delivery of Shares. On each Settlement Date, the Selling Shareholder will, or will cause the Company’s transfer agent to, electronically transfer the Placement Shares being sold by crediting the Agents’ respective accounts or their respective designee’s account at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto and, upon receipt of such Placement Shares, which in all cases shall be freely tradeable, transferable, registered shares in good deliverable form, the Agents will, on each Settlement Date, deliver the related Net Proceeds in same day funds delivered to an account designated by the Selling Shareholder prior to the Settlement Date. If the Selling Shareholder defaults in its obligation to deliver Placement Shares on a Settlement Date, the Selling Shareholder agrees that in addition to and in no way limiting the rights and obligations set forth in Section 11 hereto, it will (i) hold the Agents harmless against any loss, claim, damage, or expense (including legal fees and expenses), as incurred, arising out of or in connection with such default by the Selling Shareholder and (ii) pay to the Agents any commission, discount, or other compensation to which it would otherwise have been entitled absent such default.
The Agents shall provide written confirmation to the Selling Shareholder following the close of trading on the Principal Market on each Trading Day on which Shares are sold under this Agreement on an agented basis setting forth the number of Shares sold on such day, the number of Shares sold at each price, the aggregate gross sales proceeds of the Shares, the aggregate Net Proceeds to the Selling Shareholder and the aggregate compensation payable by the Selling Shareholder to the Agents with respect to such sales.
6. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Agents that, unless such representation or warranty specifies a different time, as of the date of this Agreement:
(a) Registration Statement and Prospectus. The Common Shares are registered pursuant to Section 12(b) of the Exchange Act, and the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the Commission (the “Commission Documents”) since the Company has been subject to the requirements of Section 12 of the Exchange Act, and all of such filings required to be filed within the last 12 months have been made on a timely basis. The Common Shares are currently quoted on the Principal Trading Market under the trading symbol “DCBO”. The Company and the transactions contemplated hereby meet the requirements for use of Form F-3 under the Securities Act and the rules and regulations thereunder (“Rules and Regulations”), including but not limited to the transaction requirements for an offering made by the issuer set forth in Instruction I.B.1 to Form F-3. The Company has prepared and filed, or will prepare and file, with the Commission a registration statement on Form F-3 with respect to the Shares to be offered and sold by the Selling Shareholder pursuant to this Agreement. Such registration statement, at any given time, including the amendments thereto at such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form F-3 under the Securities Act at such time and the documents otherwise deemed to be a part thereof or included therein by the rules and regulations under the Securities Act, is herein called the “Registration Statement.” The Registration Statement, including the prospectus contained therein (together with any prospectus supplement, in each case, as from time to time amended or further supplemented, the “Prospectus”) has been or will be prepared by the Company in conformity, in all material respects, with the requirements of the Securities Act and all applicable Rules and Regulations and has been or will be filed with the Commission in the manner and time frame required by the Securities Act and the Rules and Regulations. Any amendment or supplement to the Registration Statement or Prospectus
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required by this Agreement will be so prepared and filed by the Company and, as applicable, the Company will use commercially reasonable efforts to cause it to become effective as soon as reasonably practicable. No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened by the Commission. No order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus (as defined herein) has been issued by the Commission. Copies of all filings made by the Company under the Securities Act and all Commission Documents that were filed with the Commission have either been delivered to the Agents or are available to the Agents on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”). Any reference herein to the Registration Statement, the Prospectus, or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein pursuant to Item 12 of Form F-3 under the Securities Act, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For the purposes of this Agreement, the “Applicable Time” means, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement.
(b) No Misstatement or Omission. The Registration Statement, when such part became or becomes effective, at any deemed effective date pursuant to Rule 430B(f)(2) on the date of filing thereof with the Commission and at each Applicable Time and Settlement Date, and the Prospectus, on the date of filing thereof with the Commission and at each Applicable Time and Settlement Date, conformed or will conform in all material respects with the requirements of the Securities Act and the Rules and Regulations; each part of the Registration Statement, when such part became or becomes effective, did not or will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading; and the Prospectus, on the date of filing thereof with the Commission, and the Prospectus and any applicable Issuer Free Writing Prospectus(es) issued at or prior to such Applicable Time, taken together (collectively, and with respect to any Shares, together with the public offering price of such Shares, the “Disclosure Package”) and at each Applicable Time and Settlement Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; except that the foregoing shall not apply to statements or omissions in any such document made in reliance on information furnished in writing to the Company by the Agents through the Representative expressly stating that such information is intended for use in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or in any Issuer Free Writing Prospectus(es).
(c) Conformity with Securities Act and Exchange Act. The documents incorporated by reference in the Registration Statement or the Prospectus, or any amendment or supplement thereto, when they became effective under the Securities Act or were filed with the Commission under the Exchange Act, as the case may be, conformed in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Registration Statement or the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading; provided however, that this representation and warranty shall not apply to any statements or omissions (a) that have been corrected in a filing that has been incorporated by reference in the Prospectus prior to the relevant Applicable Time or (b) made in reliance on information furnished in writing to the Company by the Agents through the Representative expressly stating that such information is intended for use in any such document.
(d) Company Not Ineligible Issuer; Free Writing Prospectuses. At the time of filing the Registration Statement and any post-effective amendment thereto and at the date hereof, the Company was not and is not an “ineligible issuer,” pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, in connection with the transactions contemplated herein pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. The Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
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(e) No Material Changes. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as otherwise disclosed in the Registration Statement and the Prospectus: (a) there has been no material adverse change, or any development involving a prospective material adverse change, in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and each of Docebo NA, Inc., Docebo UK Limited, Docebo S.p.A., Docebo EMEA FZ-LLC, Docebo France Société par Actions Simplifiée, Docebo DACH GmbH and any subsidiaries formed after the date hereof and prior to each respective Settlement Date (collectively, the “Subsidiaries”), taken as a whole and as a going concern (“Condition of the Company”); (b) there have been no transactions entered into by the Company or any of the Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and the Subsidiaries taken as a whole; and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares.
(f) Organization. The Company and each of its Subsidiaries is a valid and subsisting corporation, duly incorporated, continued or amalgamated and in good standing under the laws of their respective jurisdictions of formation, incorporation, continuation or amalgamation and have all requisite power, capacity and authority to carry on their business as now conducted or contemplated to be conducted and to own, lease and operate their property and assets and, in the case of the Company, to execute, deliver and perform its obligations hereunder; and, no proceedings have been taken or authorized by the Company or its shareholders or to the knowledge of the Company, any other person, with respect to the bankruptcy, insolvency, liquidation, dissolution or winding up of the Company.
(g) Capitalization. All of the outstanding Common Shares of the Company have been duly authorized and are validly issued, fully paid and non-assessable. All of the issued and outstanding shares of, or other equity interests in, the Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, and, except as otherwise disclosed in the Registration Statement and the Prospectus, are free and clear of any mortgage, charge, pledge, hypothec, claim, security interest, assignment, lien (statutory or otherwise), restriction on transfer, or other encumbrance of any nature, including any arrangement or condition which, in substance, secures payment or performance of an obligation (“Lien”), whatsoever. The issued share capital of the Company, including the Common Shares, conforms in all material respects to the description thereof contained in the Registration Statement and the Common Shares, including the Shares, will conform to the description thereof contained in the Prospectus as amended or supplemented.
(h) No Registration Rights. Except as disclosed in Registration Statement, the Prospectus and the Disclosure Package, and contracts, agreements or understandings expired in accordance with their terms prior to the date of this Agreement, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act or to file a prospectus under the Securities Act (Ontario) and the securities legislation applicable in each of the other provinces and territories of Canada and the rules, regulations, and national, multi-jurisdictional or local instruments, policy statements, published policies, notices, blanket rulings, and orders of any federal or provincial securities commissions (collectively, the “Canadian Securities Laws”) with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the in the transactions contemplated hereunder by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Shares.
(i) Regulatory Consents. In connection with the offering and sale of the Shares in the manner contemplated in this Agreement and in the Registration Statement and the Prospectus, the Company will have complied with all requirements applicable to it, and obtained all consents and waivers required to be obtained by it, on or prior to any such sale as may be required under Canadian Securities Laws, U.S. federal and state securities laws, the Rules and Regulations, the rules of FINRA, the rules of the Nasdaq Global Select Market and the Nasdaq Stock Market LLC, and the rules and regulations of the Toronto Stock Exchange.
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(j) Enforceability. This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (a) as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally, (b) as limited by the application of equitable principles when equitable remedies are sought, (c) that rights to indemnity and contribution may be limited under applicable law, and (d) that provisions that attempt to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of the agreement would be determined only in the discretion of the court.
(k) No Conflicts. Neither the Company nor any of its Subsidiaries is in violation or default of, nor will the execution and delivery of this Agreement, and the performance by the Company of its obligations hereunder, result in a breach or violation of, or be in conflict with, or constitute a default under, or create a state of facts which after notice or lapse of time, or both, would constitute a default under, or result in the imposition of any Lien upon any property or assets of the Company or its Subsidiaries pursuant to:
(i) any of the terms, conditions or provisions of the articles or by-laws of the Company or any of its Subsidiaries, or any resolution of their respective directors or shareholders;
(ii) any law applicable to the Company or its Subsidiaries;
(iii) any judgement, decree, order or award of any court, governmental entity or arbitrator having jurisdiction over any of the Company or its Subsidiaries, of which the Company or its Subsidiaries are aware; or
(iv) any agreement, license, authorization or permit necessary for the conduct of their businesses, to which any of the Company or its Subsidiaries is party or bound or to which any of the business, operations, property or assets of the Company or its Subsidiaries is subject;
which violation or default would, individually or in the aggregate: (i) result in a material adverse effect on the Condition of the Company or (ii) materially impair the ability of the Company to perform its obligations under this Agreement.
(l) Preemptive Rights. Except as disclosed in the Registration Statement, the Prospectus and the Disclosure Package, no person (except for the Agents hereunder) has an agreement (oral or written) or option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the subscription or issuance by Company of any unissued shares of the Company, or for the purchase or acquisition, outside of the ordinary course of business, of any material assets or material property of any kind of the Company or any of its Subsidiaries. Other than the Company or any of its Subsidiaries pursuant to inter-company arrangements, no person has an agreement (oral or written) or option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the subscription or issuance by any Subsidiary of any unissued shares of the Subsidiary.
(m) Compliance with Laws. Neither the Company nor any of its Subsidiaries is in violation of any laws, other than violations which would not individually or in the aggregate reasonably be expected to have a material adverse effect on the Condition of the Company.
(n) Consents and Permits. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries possess all licenses, permits, franchises, certificates, registrations and authorizations necessary to conduct their business and own their property and assets and are not in default or breach of any of the foregoing, except for failure to possess, defaults or breaches which would not individually or in the aggregate reasonably be expected to have a material adverse effect on the Condition of the Company.
(o) No Violations or Default. Except those that would not reasonably be expected to have a material adverse effect on the Condition of the Company, neither the Company nor any of its Subsidiaries is in breach of, conflict with, or default under, and no event or omission has occurred which after notice or lapse of time or both, would constitute a breach of, conflict with, or default under, or would result in the acceleration or maturity of any material indebtedness or other material liabilities or obligations under any mortgage, hypothec, note, indenture, contract, agreement (written or oral), instrument, lease, license or other document to which it is a party or is subject or by which it is bound.
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(p) Legal Proceedings. Except as disclosed in the Registration Statement, Prospectus and Disclosure Package, there is no action, suit or proceeding before or by any governmental entity now pending or, to the knowledge of the Company, threatened against the Company, its Subsidiaries or any of their properties or assets (collectively, “Proceedings”) that would reasonably be expected to have a material adverse effect on the Condition of the Company or the consummation of the transactions contemplated in this Agreement, and the aggregate of all pending Proceedings, including routine litigation, would not reasonably be expected to have a material adverse effect on the Condition of the Company if determined unfavorably.
(q) Off-Balance Sheet Arrangements. Except as disclosed in the Registration Statement and the Prospectus, there are no off-balance sheet transactions, arrangements, obligations (including contingent obligations) or other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the financial condition, changes in financial condition, results of operations, earnings, cash flow, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses of the Company or that would reasonably be expected to be material to an investor in making a decision to purchase Shares.
(r) Indebtedness. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries has outstanding any debentures, notes, mortgages or other indebtedness that is material to the Company and its Subsidiaries, taken as a whole.
(s) Contingent Liabilities. Except as disclosed in the Registration Statement and the Prospectus, the Company does not have any contingent liabilities that would be required to be disclosed under IFRS (as defined below), in excess of the liabilities that are either reflected or reserved against in the Company’s financial statements which would reasonably be expected to be material to the Condition of the Company.
(t) Taxes. Except with respect to matters which would not reasonably be expected to have a material adverse effect on the Condition of the Company: (a) all income tax returns of the Company and its Subsidiaries required by law to be filed in any jurisdiction have been filed, all such returns are complete and accurate and all taxes shown on such returns or otherwise assessed which are due and payable have been paid, except tax assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided; (b) all other tax returns of the Company and its Subsidiaries required to be filed pursuant to any applicable law have been filed, all such returns are complete and accurate and all taxes shown on such returns or otherwise assessed which are due and payable have been paid, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided; (c) the Company has made installments of taxes as and when required; and (d) the Company has duly and timely withheld from any amount paid or credited by it to or for the account or benefit of any person, including any employee, officer, director, or non-resident person, the amount of all taxes and other deductions required by applicable law to be withheld and has duly and timely remitted the withheld amount to the appropriate taxing or other authority and has duly and timely issued tax reporting slips or returns in respect of any amount so paid or credited by it as required by applicable law.
(u) Director and Employee Plans. The Registration Statement and the Prospectus disclose, to the extent required by applicable U.S. federal and state securities laws, each material plan for retirement, bonus, stock purchase, profit sharing, stock option, deferred compensation, severance or termination pay, insurance, medical, hospital, dental, vision care, drug, sick leave, disability, salary continuation, legal benefits, unemployment benefits, vacation, incentive or otherwise contributed to or required to be contributed to, by the Company for the benefit of any current or former director, officer, employee or consultant of the Company.
(v) Pension Plans. The Company has no pension, retirement or similar plans relating to current or former employees, officers or directors of the Company or any of its Subsidiaries, whether written or oral.
(w) Employment Laws; Labour Disputes. Except as would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the Condition of the Company, (a) each of the Company and its Subsidiaries is in compliance with the provisions of applicable federal, provincial, state, local and foreign laws and regulations respecting employment; (b) no labour dispute (including any strike, lock-out or work slow-down or stoppage) with the current or former employees of the Company of any of its Subsidiaries exists or is pending or, to the knowledge of the Company is threatened or imminent, and the Company has no knowledge of any existing or imminent labour disturbance by the employees of the Company’s or the Subsidiaries’ principal suppliers, value-added resellers or agents that would impact the Company; (c) the labour relations of the Company and its Subsidiaries are
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satisfactory; and (d) no union has been accredited or otherwise designated to represent any employees of the Company or its Subsidiaries and, to the knowledge of the Company, no accreditation request or other representation question is pending with respect to the employees of the Company or its Subsidiaries and no collective agreement or collective bargaining agreement or modification thereof has expired or is in effect in any of the premises of the Company or its Subsidiaries and none is currently being negotiated by the Company or its Subsidiaries.
(x) Title to Property; Leases. (a) Except for Company IP (as defined below), which is addressed separately, the Company and its Subsidiaries have good and marketable title to the material property and assets owned by them and hold valid leases in all material property leased by them, in each case, free and clear of all Liens other than those which would not individually or in the aggregate reasonably be expected to have a material adverse effect on the Condition of the Company; (b) except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries owns any real property and none has entered into any agreement to acquire any real property; (c) the Company has not received any notice or other communication from the owner or manager of any of its leased material properties that the Company or any of its Subsidiaries is not in compliance with any material term or condition of its lease, and to the knowledge of the Company, no such notice or other communication is pending or has been threatened; and (d) all material tangible assets of the Company and its Subsidiaries are in good working condition and repair except as would not individually or in the aggregate reasonably be expected to have a material adverse effect on the Condition of the Company.
(y) Insurance. (a) The Company and its Subsidiaries maintain insurance policies with reputable insurers against risks of loss of or damage to their properties, assets and business of such types and in such amounts as are customary in the case of entities engaged in the same or similar businesses and the Company and its Subsidiaries are not in default in any material respect under any such policies; (b) neither the Company nor its Subsidiaries has received notice from any insurer or agent of such insurer that material capital improvements or other expenditures will have to be made in order to continue such insurance; and (c) all such insurance is outstanding and in full force and effect and neither the Company nor the Subsidiaries has received any notice of cancellation or proposed cancellation relating to such insurance.
(z) Environmental Laws. Except as would not individually or in the aggregate reasonably be expected to have a material adverse effect on the Condition of the Company: (a) neither the Company nor any of its Subsidiaries is in violation of any applicable law relating to pollution or occupational health and safety, the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including laws relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (b) to the knowledge of the Company, there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, Liens, notices of non-compliance or violation, investigation or proceedings relating to any Environmental Laws against the Company or any of its Subsidiaries and (c) to the knowledge of the Company, there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(aa) Government Officials. (a) None of the Company or its Subsidiaries or affiliates, or any director, officer, or employee thereof, or, to the Company’s knowledge, any agent or representative of the Company or of any of its Subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to influence official action, or to any person in violation of any applicable anti-corruption statute or regulation; (b) the Company and its Subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption statutes and regulations and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company or any subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal, provincial, state or foreign office in violation of any law or of the character required to be disclosed in the Registration Statement or the Prospectus, or any related amendment thereto.
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(bb) Anti-Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(cc) Sanctions. (a) None of the Company, any of its Subsidiaries, or any director, officer, or employee thereof, or, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its Subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by one or more Persons that are:
(i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(b) The Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions. For the past five years, the Company and each of its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(dd) Title to Intellectual Property. The Company or its Subsidiaries, as the case may be, is the legal and beneficial owner of, has good and marketable title to, the right to use and exploit, and owns all rights, title and interest in all Company IP free and clear of all Liens except for covenants, conditions, options to purchase and restriction, except where the failure to so own, use or exploit would not result in a material adverse effect on the Condition of the Company. “Company IP” means the following intellectual property that is owned by the Company or its Subsidiaries, whether through development, creation, conception or acquisition: (a) trademarks, including brand names, business names, trade names, registered and unregistered trademarks, service marks, certification marks, distinguishing guises, trade dress, get-up, logos and other indications of origin; (b) patents, including patents, patent rights (including design patents and industrial designs) and related applications; (c) copyrights, writings and other copyrightable works of authorship, including computer programs, data bases and related documentation, maskworks and integrated circuit topographies; and (d) trade secrets (proprietary and non-public business information) including know-how, inventions, discoveries, improvements, concepts, ideas, methods, processes, designs, formulae, technical data, drawings, specifications, research and development information, customer lists, and business plans and marketing plans.
(ee) Intellectual Property Actions, Infringement. Except as would not reasonably be expected to have a material adverse effect on the Condition of the Company: (a) no action, suit, proceeding or claim is pending, nor have the Company or its Subsidiaries received any notice or claim (whether written, oral or otherwise), challenging the ownership, validity or right to use any of the Company IP or suggesting that any other person has any claim of legal or beneficial ownership or other claim or interest with respect to Company IP; (b) to the knowledge of the Company, there is no Company IP being used or enforced by the Company or any of its Subsidiaries in a manner that would result in its abandonment, cancellation or unenforceability; and (c) to the knowledge of the Company, no person is infringing upon, violating or misappropriating any material Company IP and neither the Company nor any of its Subsidiaries is a party to any action or proceeding that alleges that any person has infringed, violated or misappropriated any Company IP.
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(ff) Intellectual Property Licenses. Except in each case as would not reasonably be expected to have a material adverse effect on the Condition of the Company, and except in relation to open source software or commercially available off-the-shelf software: (a) each of the Company and its Subsidiaries, as applicable, have entered into valid and enforceable written agreements in respect of their licensed intellectual property; (b) the Company or its Subsidiaries has been granted licenses and permission to use, reproduce, sub-license, sell, modify, update, enhance or otherwise exploit the licensed intellectual property to the extent required to conduct the business of the Company and its Subsidiaries (including, if required, the right to incorporate such licensed intellectual property into the Company IP); and (c) all license agreements in respect to any licensed intellectual property that is material to the business of the Company are in full force and effect and none of the Company or its Subsidiaries is in default of any of their material obligations thereunder.
(gg) Confidentiality and Non-Disclosure Agreements. Except in each case as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Condition of the Company: (a) to the extent any Company IP was invented, developed, modified, created, conceived, supported or reduced to practice, in whole or in part, by current or past employees or independent contractors of the Company or any of its Subsidiaries, the Company and its Subsidiaries have obtained written agreements providing for confidentiality, non-disclosure and assignment of inventions executed by all of such employees and independent contractors; and (b) the Company and Subsidiaries treat their software products, including all source code therein, as confidential and proprietary business information and have taken commercially reasonable steps to protect the source code as trade secrets.
(hh) Third Party Intellectual Property Actions. Except in each case as would not reasonably be expected to have a material adverse effect on the Condition of the Company: (i) neither the Company nor any of its Subsidiaries is a party to any action or proceeding; and (ii) to the knowledge of the Company, there are no actions or proceedings threatened, in each case that allege that the Company or its Subsidiaries has infringed, violated or misappropriated any intellectual property of any person.
(ii) Cybersecurity. Except in each case as would not reasonably be expected to have a material adverse effect on the Condition of the Company, the Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform as required in connection with the operation of the business of the Company and its Subsidiaries as currently conducted. The Company and its Subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to control risks and to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability, and there are no material incidents under internal review or investigations relating to the same. Except as would not reasonably be expected to have a material adverse effect on the Condition of the Company, the Company and its Subsidiaries presently comply, and have complied at all times, with all applicable laws, statutes, and industry standards, and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority (including, but not limited to, the European Union General Data Protection Regulation, the Canadian Personal Information Protection and Electronic Documents Act, and the Payment Card Industry Data Security Standard, where applicable), and internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification. The Company and its Subsidiaries have entered into data processing agreements compliant in all material respects with all applicable laws relating to the privacy and security of IT Systems and Personal Data with each of its subscribers, and the Company has implemented compliance measures to ensure that its subscribers are in material compliance with the terms of such data processing agreements.
(jj) No Material Changes. Except for the transactions contemplated by this Agreement, or as otherwise disclosed in the Prospectus, Registration Statement and Disclosure Package, since December 31, 2021:
(i) there has not been any material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the Condition of the Company;
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(ii) there has not been any material change in the capital stock or long-term or short-term debt of the Company determined on a consolidated basis; and
(iii) there has been no transaction out of the ordinary course of business that is material to the Company and its Subsidiaries taken as a whole.
(kk) Directors and Officers. To the knowledge of the Company, none of the Company’s directors or officers is now, or has ever been, subject to an order or ruling of any securities regulatory authority or stock exchange prohibiting such individual from acting as a director or officer of a public company or of a company listed on any stock exchange.
(ll) Minute Books. The minute books and corporate records of the Company and its Subsidiaries made available to Stikeman Elliott LLP, Canadian counsel to the Agents, and Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel to the Agents, for the periods from their respective dates of incorporation, continuance or amalgamation, as the case may be, to the date of examination thereof are the original minute books and records of the Company and its Subsidiaries and contain, in all material respects, all proceedings of the shareholders, the board of directors and all committees of the board of directors of the Company and its Subsidiaries.
(mm) Underwriter Agreements. Except for this Agreement, the Company is not a party to any agreement with an agent or underwriter for any other “at the market” transaction.
(nn) Broker/Dealer Relationships. Neither the Company nor the Subsidiaries or any related entities (i) is required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls or is a “person associated with a FINRA member” or “associated person of a FINRA member” (within the meaning of Article I of the Bylaws of the FINRA).
(oo) No Integration. The Company has not sold or issued any securities that would be integrated with the sale of the Shares contemplated by this Agreement pursuant to the Securities Act or the Rules and Regulations.
(pp) Independent Public Accountants. The Company’s former auditors, PricewaterhouseCoopers LLP (“PwC”) were during the period they served as the Company’s auditors, and the Company’s current auditors KPMG LLP (“KPMG”) are, independent public accountants as required under Canadian Securities Laws and are an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States), and there has not been any disagreement (within the meaning of National Instrument 51-102 – Continuous Disclosure Obligations) with the present or any former auditors of the Company.
(qq) Prospectus Disclosure. The statements set forth in the Prospectus under the caption “Description of Common Shares” insofar as they purport to constitute a summary of the terms of the Shares, and under the caption “Plan of Distribution,” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete.
(rr) eXtensible Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(ss) Financial Information. (a) The financial statements (including the related notes thereto and the supporting schedules) of the Company and the Subsidiaries, set forth or incorporated by reference in the Registration Statement, Prospectus and Disclosure Package, have been and will be prepared in accordance with International Financial Reporting Standards (“IFRS”) consistently applied at the times and during the periods covered thereby (except (i) as may be otherwise indicated in such financial statements or the notes thereto, and (ii) in the case of unaudited interim statements, subject to normal year-end audit adjustments and the exclusion or condensing of certain footnotes), and fairly present in all material respects and will fairly present in all material respects the financial position of the Company as of the dates indicated and the results of its operations and the changes in its cash flows for the periods specified (subject, in the case of unaudited statements, to normal year-end adjustments); (b) the other financial information included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure
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Package has been derived from the accounting records of the Company and its Subsidiaries and presents fairly in all material respects the information shown thereby; and (c) the Company does not have any material liabilities or obligations, direct or contingent, which are not disclosed in the Registration Statement, Prospectus and Disclosure Package, as of the date of filing of those documents. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the Disclosure Package or the Prospectus under the Securities Act or the Rules and Regulations.
(tt) Disclosure Controls; Accounting Controls. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company has established and maintains a system of “disclosure controls and procedures” and “internal control over financial reporting” as required by Rule 13a-15(e) under the Exchange Act, NI 52-109 and Canadian Securities Laws (and subject to applicable exemptions therefrom), which are effective in all material respects to perform the functions for which they were established. Based on the most recent evaluation of its internal controls over financial reporting, the Company is not aware, and has not been advised by its auditors, of any “material weakness”.
(uu) Stabilization. Neither the Company nor any of its Subsidiaries has taken, and the Company and its Subsidiaries will not take, any action which constitutes stabilization or manipulation of the price of the Shares or any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act) of the Company.
(vv) Sarbanes-Oxley. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended, and all applicable rules and regulations promulgated thereunder or implementing provisions thereof (the “Sarbanes-Oxley Act”).
(ww) Investment Company Act. Neither the Company nor any of its Subsidiaries is (a) required to register as an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder, or (b) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).
(xx) ERISA. Except as would not reasonably be expected to result in a material adverse change to the Condition of the Company, (a) the Company and each of its Subsidiaries are in compliance with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); (b) no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would have any liability; (c) the Company has not incurred and does not expect to incur liability under (A) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (B) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and (d) each “pension plan” for which the Company would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(yy) Dividends. With the exception of withholding tax levied under the Income Tax Act (Canada), under the current laws and regulations of Canada and the Province of Ontario all dividends and other distributions declared and payable on the Shares in cash may be freely remitted out of Canada and may be paid in, or freely converted into, United States dollars, in each case without there being required any consent, approval, authorization or order of, or qualification with, any court or governmental agency or body in Canada; and except as disclosed in the Registration Statement and the Prospectus, all such dividends and other distributions paid by the Company will not be subject to withholding under the laws and regulations of Canada.
(zz) Stamp Taxes. No stamp, documentary, issuance, registration, transfer or other similar taxes or duties are payable by or on behalf of the Agents, the Company, any of its Subsidiaries or the Selling Shareholder under the laws of Canada in connection with (i) the execution, delivery or consummation of this Agreement and (ii) the sale and delivery of the Shares to the Agents or purchasers procured by the Agents, or (iii) the resale and delivery of the Shares by the Agents in the manner contemplated herein.
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(aaa) PFIC Status. Subject to the qualifications, limitations, exceptions and assumptions set forth in, and except as otherwise disclosed in, the Registration Statement and the Prospectus, the Company does not believe that it was a passive foreign investment company, as defined in section 1297 of the Internal Revenue Code of 1986, as amended, for its taxable year ending December 31, 2021.
(bbb) Foreign Private Issuer. The Company is a “foreign private issuer” within the meaning of Rule 405 under the Securities Act.
(ccc) Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the Disclosure Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate in all material respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(ddd) Related Party Transactions. There are no business relationships or related-party transactions involving the Company, any of the Subsidiaries or any other person required to be described in the Registration Statement, the Prospectus and the Disclosure Package, which have not been described as required. The Disclosure Package contains in all material respects the description of the matters set forth in the preceding sentence contained in the Prospectus as required by applicable law.
(eee) No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus as of the Applicable Time did not or will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by the Agents through the Representative for use therein.
(fff) Enforcement of Foreign Judgments. Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New York state court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against the Company based upon this Agreement would be declared enforceable against the Company by the courts of Ontario or Canada, without reconsideration or reexamination on the merits.
(ggg) Valid Choice of Law. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Ontario and Canada, and will be honoured by the courts of Ontario or Canada, subject to the restrictions described under the caption “Enforceability of Civil Liabilities” in the Registration Statement and the Prospectus. The Company has the power to submit, and pursuant to Section 18 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York state and United States federal court sitting in the City of New York and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in such court.
7. Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to, and agrees with, the Agents that, unless such representation or warranty specifies a different time, as of the date of this Agreement:
(a) Organization. The Selling Shareholder is a valid and subsisting entity duly formed or incorporated and in good standing under the laws of its formation or jurisdiction of incorporation and has all requisite power, capacity and authority to carry on its business as currently conducted and to own, lease and operate its property and assets and to execute, deliver and perform its obligations hereunder.
(b) Consents. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement, and for the sale and delivery of the Shares, to be sold by the Selling Shareholder hereunder, have been obtained, and the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder hereunder.
(c) No Violations or Default. The sale of the Shares to be sold by the Selling Shareholder hereunder, and the compliance by the Selling Shareholder with this Agreement and the consummation of the transactions herein contemplated will not: (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, hypothec, deed of trust, loan agreement, lease or other
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agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject; (ii) result in any violation of the provisions of the organizational documents of the Selling Shareholder; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or any of its subsidiaries or any property or assets of the Selling Shareholder, except, in the case of (i) and (iii), where such violations would not, individually or in the aggregate, have a material adverse effect on the Selling Shareholder’s ability to perform its obligations hereunder.
(d) Legal Proceedings. There is no action, suit, investigation or proceeding, at law or in equity, by any person, nor any arbitration, administrative or other proceeding by or before any governmental authority pending or, to the Selling Shareholder’s knowledge, threatened against or affecting the Selling Shareholder which invalidates the sale and delivery of the Shares being sold by the Selling Shareholder or the validity of any action taken or to be taken by the Selling Shareholder pursuant to or in connection with this Agreement.
(e) Valid Title to Shares. The Selling Shareholder has good and valid title to the Shares to be sold by the Selling Shareholder, free and clear of all mortgages, Liens, charges, pledges, security interests, encumbrances, claims and demands or rights of any other person whatsoever. The Selling Shareholder will transfer to the Agents good and marketable title to such Shares free and clear of all mortgages, Liens, charges, pledges, security interests, encumbrances, claims and demands or rights of any other person whatsoever. As of the date of this Agreement, the Selling Shareholder owns 13,589,920 Common Shares of the Company.
(f) Encumbrances. The Selling Shareholder has, and on each respective Settlement Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(g) Third Party Purchase Rights. No person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase of any Shares held by the Selling Shareholder.
(h) Enforceability. The Agreement has been duly executed and delivered by the Selling Shareholder and constitutes a valid and binding obligation of the Selling Shareholder enforceable against the Selling Shareholder in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law.
(i) Stabilization. Neither the Selling Shareholder, nor any affiliate of the Selling Shareholder, has taken and will take, directly or indirectly, any action that is designed to or that has constituted or might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company for the purpose of facilitating the sale or resale of the Shares.
(j) No Misstatement or Omission. The Registration Statement, when such part became or becomes effective, at any deemed effective date pursuant to Rule 430B(f)(2) on the date of filing thereof with the Commission and at each Applicable Time and Settlement Date, and the Prospectus, on the date of filing thereof with the Commission and at each Applicable Time and Settlement Date, conformed or will conform in all material respects with the requirements of the Securities Act and the Rules and Regulations; each part of the Registration Statement, when such part became or becomes effective, did not or will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading; and the Prospectus, on the date of filing thereof with the Commission, and the Prospectus and any applicable Issuer Free Writing Prospectus(es) issued at or prior to such Applicable Time, taken together and at each Applicable Time and Settlement Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 7(j) are limited to statements or omissions made in reliance upon Selling Shareholder Information (as defined below) furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Disclosure Package, and the Prospectus or any amendments or supplements thereto.
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(k) No Undisclosed Material Information. The Selling Shareholder is not prompted by any information concerning the Company or its Subsidiaries which is not set forth in the Registration Statement or the Prospectus to sell its Shares pursuant to this Agreement.
(l) Government Officials. (a) None of the Selling Shareholder or, if applicable, its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and, if applicable, its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures as reasonably required and reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor, if applicable, any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(m) Anti-Money Laundering Laws. The operations of the Selling Shareholder and, if applicable, its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(n) Sanctions. (a) None of the Selling Shareholder or, if applicable, any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(i) the subject of any Sanctions, or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(b) The Selling Shareholder will not, directly or indirectly, use the proceeds of any offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(ii) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in any offering hereunder, whether as agent, advisor, investor or otherwise).
(c) The Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(o) ERISA. The Selling Shareholder is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(p) Stamp Taxes. No stamp, documentary, issuance, registration, transfer or other similar taxes or duties are payable by or on behalf of the Agents, the Company, any of its Subsidiaries or the Selling Shareholder under the laws of Canada in connection with (i) the execution, delivery or consummation of this Agreement and (ii) the sale and delivery of the Shares to the Agents or purchasers procured by the Agents, or (iii) the resale and delivery of the Shares by the Agents in the manner contemplated herein.
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(q) The Agents Purchases. The Selling Shareholder acknowledges and agrees that the Agents have informed the Selling Shareholder that the Agents may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell shares of Common Shares for each Agent’s own account and for the account of their respective clients at the same time as sales of Shares occur pursuant to this Agreement.
(r) No Reliance. The Selling Shareholder has not relied upon the Agents or legal counsel for the Agents for any legal, tax or accounting advice in connection with the offering and sale of the Shares.
(s) Underwriter Agreements. Except for this Agreement, the Selling Shareholder is not party to any agreement with an agent or underwriter for any other “at the market” transaction.
(t) Finder’s Fees. Other than the Agents and any such dealer or broker other than the Agents, with which the Agents have a contractual relationship in respect of the distribution of the Shares, there is no person acting or purporting to act at the request of the Selling Shareholder, who is entitled to any commission, finder’s fee, advisory fee, underwriting fee or agency fee in connection with or as a result of the sale of the Shares.
(u) Margin Rules. The application of the proceeds received by the Selling Shareholder from the issuance, sale and delivery of the Shares as described in the Registration Statement, the Disclosure Package and the Prospectus will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(v) Enforcement of Foreign Judgments. Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New York state court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against the Selling Shareholder based upon this Agreement would be declared enforceable against the Selling Shareholder by the courts of Ontario or Canada, without reconsideration or reexamination on the merits.
(w) Valid Choice of Law. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Ontario and Canada, and will be honoured by the courts of Ontario or Canada, subject to the restrictions described under the caption “Enforceability of Civil Liabilities” in the Registration Statement and the Prospectus. The Selling Shareholder has the power to submit, and pursuant to Section 18 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York state and United States federal court sitting in the City of New York and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in such court.
8. Covenants of the Company and the Selling Shareholder. Each of the Company and, solely with respect to Sections 8(g), 8(h), 8(i), 8(k), 8(n), 8(o), 8(q), 8(x), and 8(y), the Selling Shareholder, covenants and agrees with the Agents that:
(a) Registration Statement Amendments. After the date of this Agreement and during the period in which a prospectus relating to the Placement Shares is required to be delivered by the Agents under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or Rule 173(a) under the Securities Act), (i) the Company will notify the Agents promptly of the time when any subsequent amendment to the Registration Statement has been filed with the Commission and has become effective (each, a “Registration Statement Amendment Date”) or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; (ii) the Company will file promptly all other material required to be filed by it with the Commission pursuant to Rule 433(d) under the Securities Act; (iii) the Company will prepare and file with the Commission, promptly upon the Representative’s request, any amendments or supplements to the Registration Statement or Prospectus that, in the Representative’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by the Agents (provided, however that the failure of the Agents to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties made by the Company and the Selling Shareholder in this Agreement); and (iv) the Company will submit to the Agents a copy of any amendment or supplement to the Registration Statement or
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Prospectus a reasonable period of time before the filing thereof and will afford the Agents and the Agents’ counsel a reasonable opportunity to comment on any such proposed filing prior to such proposed filing; and the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424 (b) of the Rules and Regulations or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed.
(b) Notice of Commission Stop Orders. The Company will advise the Agents, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or other prospectus in respect of the Shares, of any notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the form of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of the Prospectus in respect of the Shares or suspending any such qualification, to promptly use its commercially reasonable efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such reasonable steps as may be necessary to permit offers and sales of the Placement Shares by the Agents, which may include, without limitation, amending the Registration Statement or filing a new registration statement, at the Company’s expense (references herein to the Registration Statement shall include any such amendment or new registration statement).
(c) Delivery of Prospectus; Subsequent Changes. Within the time during which a prospectus relating to the Shares is required to be delivered by the Agents under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or Rule 173(a) under the Securities Act), the Company will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, and will file on or before their respective due dates all reports required to be filed by it with the Commission pursuant to Sections 14(a), 14(c), 14(d), if applicable, or any other provision of or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will immediately notify the Selling Shareholder and the Agents to suspend the offering of Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance, other than under circumstances in which the Company has suspended the use of the Registration Statement.
(d) Nasdaq Filings. In connection with the offering and sale of the Placement Shares, the Company will file with the Nasdaq Global Select Market all documents and notices, and make all certifications, as may be required by the Nasdaq Global Select Market of companies that have securities that are listed on the Nasdaq Global Select Market.
(e) Qualification of Placement Shares. The Company will use commercially reasonable efforts to maintain or qualify the Placement Shares for sale under the securities laws of such jurisdictions as the Representative designates and to continue such qualifications in effect so long as required for the distribution of the Placement Shares; provided that the Company shall not be required in connection therewith to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(f) Delivery of Registration Statement and Prospectus. Upon the request of the Agents, the Company will furnish to the Agents and their counsel (at the expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during the period in which a prospectus relating to the Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities as the Agents may from time to time reasonably request and, at the Agents’ request, will also furnish copies of the Prospectus to each exchange or market on which sales of Placement Shares may be made.
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(g) Expenses. Each of the Company and the Selling Shareholder agree with each other and with the Agents, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated to pay all expenses incident to the performance of their obligations under this Agreement, and each of the Company and the Selling Shareholder will pay (or reimburse if paid by any other party to this Agreement), whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of their obligations under this Agreement. Without limiting the generality of the foregoing, the Company will pay all expenses relating to (i) the preparation, printing and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto and each Issuer Free Writing Prospectus (as defined in Section 9 of this Agreement), (ii) all fees and disbursements of the Company’s counsel, accountants and other advisors, (iii) the qualification of the Placement Shares under securities laws in accordance with the provisions of Section 8(e) of this Agreement, including filing fees in connection therewith, (iv) the printing and delivery to the Agents of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees and expenses incurred in connection with the continued listing or qualification of the Placement Shares for trading on the Nasdaq Global Select Market, and (vi) any filing fees and expenses incident to any review by the Financial Industry Regulatory Authority (including reasonable fees and disbursements of counsel to the Agents incurred in connection therewith not to exceed US$5,000) of the terms of the sale of the Placement Shares.
(h) Other Sales. Without the prior written consent of the Representative (which consent shall not be unreasonably withheld, conditioned or delayed), the Company and the Selling Shareholder will not (A) directly or indirectly, offer to sell, sell, announce the intention to sell, contract to sell, pledge, lend, grant or sell any option, right or warrant to sell or any contract to purchase, purchase any contract or option to sell or otherwise transfer or dispose of any Common Shares (other than the Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Common Shares, warrants or any rights to purchase or acquire, Common Shares or file any registration statement under the Securities Act with respect to any of the foregoing (other, with respect to the Company, than a registration statement on Form S-8), or (B) enter into any swap or other agreement or any transaction that transfers in whole or in part, directly or indirectly, any of the economic consequence of ownership of the Common Shares, or any securities convertible into or exchangeable or exercisable for or repayable with Common Shares, whether any such swap or transaction described in clause (A) or (B) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise, during the period beginning on the date on which any Placement Notice is delivered by the Selling Shareholder hereunder and ending on the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if such Placement Notice has been terminated or suspended prior to the sale of all Shares covered by the Placement Notice, the date of such suspension or termination); and without the prior written consent of the Representative (which consent shall not be unreasonably withheld), the Selling Shareholder will not directly or indirectly in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares (other than the Placement Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Common Shares, warrants or any rights to purchase or acquire, Common Shares prior to the later of the termination of this Agreement and the thirtieth (30th) day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice; provided, however, that such restrictions will not be applicable to the Company’s issuance or sale of (i) Common Shares, options to purchase Common Shares, deferred share units, restricted share units or performance share units or other equity awards or Common Shares issuable upon the exercise of options or settlement of deferred share units, restricted share units or performance share units, pursuant to any employee or director (x) equity incentive plan of the Company or employee share purchase plan, (y) share ownership plan or (z) dividend reinvestment plan (but not shares subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented, (ii) Common Shares issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding on the date hereof, and disclosed in writing to the Agents or otherwise disclosed in the Registration Statement, Prospectus or Disclosure Package, and (iii) Common Shares in connection with an acquisition, merger or sale, purchase of assets or other strategic transaction (including joint ventures, collaborations or partnerships); provided, further however, that such restrictions applicable to the Selling Shareholder will not be applicable to (i) transfers of Common Shares or any security convertible into Common Shares by the Selling Shareholder as a bona fide gift or gifts, including charitable contributions, (ii) transfers or distributions of Common Shares or any security convertible into Common Shares to
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limited partners, members or stockholders or other equityholders or affiliates of the Selling Shareholder, (iii) transfers of Common Shares in connection with the pledge by the Selling Shareholder of Common Shares under any existing credit facility, (iv) transfers of Common Shares or any security convertible into Common Shares in connection with a bona fide third-party tender offer, take-over bid, plan of arrangement, merger, consolidation or other similar transaction made to all holders of Common Shares involving a Change of Control (as defined below) of the Company, provided that such tender offer, merger, consolidation or other such transaction is approved by the board of directors of the Company, and (v) the establishment of a trading plan by the Selling Shareholder pursuant to Rule 10b5-1 under the Exchange Act or similar plan under Canadian Securities Laws for the transfer of Common Shares.
For purposes of this Section 8(h), “Change of Control” shall mean the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 60% of total voting power of the voting stock of the Company.
(i) Change of Circumstances. Each of the Company and the Selling Shareholder will, at any time during the term of this Agreement, as supplemented from time to time, advise the Agents immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that would materially alter or affect any opinion, certificate, letter or other document provided to the Agents pursuant to this Agreement.
(j) Due Diligence Cooperation. The Company will reasonably cooperate with any due diligence review of reasonable scope conducted by the Agents or their agents, including, without limitation, providing information and making available documents and senior corporate officers, as the Agents may reasonably request; provided, however, that the Company shall be required to make available senior corporate officers only (i) by telephone or at the Company’s principal offices and (ii) during the Company’s ordinary business hours.
(k) Affirmation of Representations, Warranties, Covenants and Other Agreements. Upon commencement of the offering of the Placement Shares under this Agreement (and upon the recommencement of the offering of the Placement Shares under this Agreement following any termination of a suspension of sales hereunder), and at each Applicable Time, each Settlement Date, each Registration Statement Amendment Date and on the date each Annual Report on Form 20-F or 40-F or Quarterly Report on Form 6-K in respect of any quarter in which sales of Placement Shares were made by the Agents under this Agreement is filed (each such date, including any date on which an amendment to any such document is filed, a “Company Periodic Report Date”), in each case, to the extent no waiver is applicable pursuant to Section 8(m), the Company and the Selling Shareholder shall be deemed to have affirmed their respective representation, warranty, covenant and other agreement contained in this Agreement.
(l) CFO Certificate. Upon the initial commencement of the offering of Placement Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following any termination of a suspension of sales hereunder), and promptly after each (i) Registration Statement Amendment Date and (ii) Company Periodic Report Date, in each case, to the extent no waiver is applicable pursuant to Section 8(m), the Company shall provide a certificate (the “CFO Certificate”) in form and substance reasonably satisfactory to the Agents, executed by the Chief Financial Officer of the Company, certifying as to certain financial or accounting information included in or incorporated by reference in the Registration Statement.
(m) Representation Dates; Company Certificate. During the term of this Agreement, on the date of each Placement Notice given hereunder, and each time the Company (i) files the Prospectus relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an annual report on Form 20-F or 40-F under the Exchange Act; or (iii) files a report on Form 6-K containing amended financial information (other than an earnings release, to “furnish” information pursuant to Form 6-K relating to the reclassifications of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iii) shall be a “Representation Date”); the Company shall furnish the Agents (but in the case of clause (iii) above only if the Representative reasonably determines that the financial information contained in such Form 6-K is material) with a certificate, in the form attached hereto as Exhibit A. The requirement to provide a certificate under this Section 8(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which
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waiver shall continue until the earlier to occur of the date the Selling Shareholder delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding the foregoing, if the Selling Shareholder subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and did not provide the Agents with a certificate under this Section 8(m), then before the Selling Shareholder delivers the Placement Notice or the Agents sells any Placement Shares, the Company shall provide the Agents with a certificate, in the form attached hereto as Exhibit A, dated the date of the Placement Notice.
(n) Selling Shareholder Certificate. During the term of this Agreement, on the date of each Placement Notice given hereunder, and on each Representation Date where a certificate of the Company is required to be delivered pursuant to Section 8(m) above, the Selling Shareholder shall furnish the Agents with a certificate, in the form attached hereto as Exhibit B.
(o) Legal Opinions. Upon the initial commencement of the offering of Placement Shares under this Agreement (and upon the recommencement of the offering of the Placement Shares under this Agreement following any termination of a suspension of sales hereunder), and promptly after each (i) Registration Statement Amendment Date and (ii) Company Periodic Report Date, in each case, to the extent no waiver is applicable pursuant to Section 8(m), the Selling Shareholder will furnish or cause to be furnished to the Agents the written opinion of Meretsky Law Firm, Canadian legal counsel to the Selling Shareholder, Nauth LPC, U.S. counsel to the Selling Shareholder, or other counsel reasonably satisfactory to the Representative, and the Company will furnish or cause to be furnished to the Agents the written opinion and negative assurance letter, to the extent applicable, of (a) Cooley LLP, U.S. counsel for the Company, and (b) Goodmans LLP, Canadian legal counsel for the Company, or other counsel reasonably satisfactory to the Representative, dated the date of such commencement or recommencement or the date of effectiveness of such amendment or the date of filing with the Commission of such supplement or other document, as the case may be, in each case in a form and substance reasonably satisfactory to the Representative and Agents’ counsel, provided, however, in lieu of such opinion and letter, counsel last furnishing such letter to the Agents may furnish the Agents with a letter substantially to the effect that the Agents may rely on such last opinion and letter to the same extent as though each were dated the date of such letter authorizing reliance (except that statements in such last letter shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance). As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to in clause (i) or (ii) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time. Such opinion and negative assurance letter, to the extent applicable, shall be rendered to the Agents at the request of the Company or the Selling Shareholder, as applicable, and shall state so therein.
(p) Comfort Letter. Upon the initial commencement of the offering of Placement Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following any termination of a suspension of sales hereunder), and promptly after each (i) Registration Statement Amendment Date and (ii) Company Periodic Report Date, in each case, to the extent no waiver is applicable pursuant to Section 8(m), the Company shall cause its independent accountants reasonably satisfactory to the Agents, to furnish the Agents a letter dated the date of this Agreement or the date of such commencement or recommencement or the date of effectiveness of such amendment or the date of filing of such supplement or other document with the Commission, as the case may be (the “Comfort Letter”), in form and substance satisfactory to the Representative, (i) confirming that they are registered independent public accountants within the meaning of the Securities Act and Canadian Securities Laws and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters included in or incorporated by reference in the Registration Statement as ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information which would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
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(q) Market Activities. The Company and the Selling Shareholder will not, directly or indirectly, without giving effect to activities by the Agents, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares, or pay anyone any compensation for soliciting purchases of the Shares other than the Agents; provided, however that the Company may bid for and purchase its Common Shares in accordance with Rule 10b-18 under the Exchange Act or in accordance with Canadian Securities Laws.
(r) Insurance. The Company and its Subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as is reasonable and customary for companies engaged in similar businesses in similar industries.
(s) Compliance with Laws. The Company and its Subsidiaries shall comply with all federal, state and local or foreign law, rule, regulation, ordinance, order or decree, except where failure to so comply would not reasonably be expected to have a material adverse effect on the Condition of the Company. Furthermore, the Company and its Subsidiaries shall maintain, or cause to be maintained, all material environmental permits, licenses and other material authorizations required by federal, state and local law in order to conduct their businesses as described in the Prospectus, and the Company and its Subsidiaries shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such material permits, licenses and authorizations and with applicable environmental laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the Condition of the Company.
(t) Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that it will not be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that are not considered an investment company.
(u) Securities Act and Exchange Act. The Company will use commercially reasonable efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(v) No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance by the Company and the Agents in their capacity as principal or agent hereunder, neither the Agents nor the Company (including its agents and representatives, other than the Agents in their capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act), required to be filed by it with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Common Shares hereunder.
(w) Sarbanes-Oxley Act. The Company and the Subsidiaries will use their commercially reasonable efforts to comply with all effective applicable provisions of the Sarbanes-Oxley Act.
(x) Consent to the Agents’ Trading. Each of the Company and the Selling Shareholder consents to the Agents trading in the shares of Common Shares of the Company for the Agents’ own respective accounts and for the accounts of their respective clients at the same time as sales of Placement Shares occur pursuant to this Agreement.
(y) Non-Consummation Offer. If, to the knowledge of the Company or the Selling Shareholder, any filing required by Rule 424 in connection with an offering of Shares shall not have been made or the representations and warranties of the Company or the Selling Shareholder contained in this Agreement shall not be true and correct on the applicable Settlement Date, the Selling Shareholder will offer to any person who has agreed to purchase Placement Shares from the Company as the result of an offer to purchase solicited by the Agents the right to refuse to purchase and pay for such Placement Shares.
(z) Actively Traded Security. If, at the time of execution of this Agreement, the Company’s Common Shares are not an “actively traded security” exempted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule, the Company shall notify the Agents at the time the Common Shares becomes an “actively traded security” under such rule. Furthermore, the Company shall notify the Agents immediately if the Common Shares, having once qualified for such exemption, ceases to so qualify.
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(aa) Blue Sky Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agents, to qualify the Placement Shares for sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agents may designate and to maintain such qualifications in effect so long as required to complete the sale of the Placement Shares; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(bb) Emerging Growth Company Status. The Company will promptly notify the Agents if the Company ceases to be an Emerging Growth Company at any time prior to the termination of this Agreement.
(cc) Tax Indemnity. The Selling Shareholder will indemnify and hold harmless the Agents against any documentary, stamp or similar issue tax, including any interest and penalties, on the sale of the Placement Shares.
9. Additional Representations and Covenants of the Company.
(a) Issuer Free Writing Prospectuses.
(i) The Company represents that it has not made, and covenants that, unless it obtains the prior written consent of the Agents, it will not make any offer relating to the Shares that would constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) (an “Issuer Free Writing Prospectus”) required to be filed by it with the Commission or retained by the Company under Rule 433 of the Securities Act; except as set forth in a Placement Notice, no use of any Issuer Free Writing Prospectus has been consented to by the Agents. The Company agrees that it will comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending.
(ii) The Company agrees that no Issuer Free Writing Prospectus, if any, will include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified, or the Prospectus. In addition, no Issuer Free Writing Prospectus, if any, will include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided however, the foregoing shall not apply to any statements or omissions in any Issuer Free Writing Prospectus made in reliance on information furnished in writing to the Company by the Agents through the Representative expressly stating that such information is intended for use therein.
(iii) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified, or the Prospectus or would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will give prompt notice thereof to the Agents and, if requested by the Agents, will prepare and furnish without charge to the Agents an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, the foregoing shall not apply to any statements or omissions in any Issuer Free Writing Prospectus made in reliance on information furnished in writing to the Company by the Agents through the Representative expressly stating that such information is intended for use therein.
(b) Non-Issuer Free Writing Prospectus. The Company consents to the use by the Agents of a free writing prospectus that (a) is not an “Issuer Free Writing Prospectus” as defined in Rule 433 under the Securities Act, and (b) contains only information describing the preliminary terms of the Shares or their offering, or information permitted under Rule 134 under the Securities Act; provided that the Agents covenant with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Agents that otherwise would not be required to be filed by the Company thereunder, but for the action of the Agents.
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(c) Distribution of Offering Materials. The Company has not distributed and will not distribute, during the term of this Agreement, any offering materials in connection with the offering and sale of the Placement Shares other than the Registration Statement, Prospectus or any Issuer Free Writing Prospectus reviewed and consented to by the Agents and included in a Placement Notice (as described in clause (a)(i) above).
10. Conditions to the Agents’ Obligations. The obligations of the Agents hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties made by the Company and the Selling Shareholder herein and in the applicable Placement Notices, to the due performance by the Company and the Selling Shareholder of their respective obligations hereunder, to the completion by the Agents of a due diligence review satisfactory to the Agents in the reasonable judgment of the Representative, and to the continuing satisfaction (or waiver by the Representative in its sole discretion) of the following additional conditions:
(a) Registration Statement Effective. The Registration Statement shall have become effective and shall be available for the sale of (i) all Placement Shares issued pursuant to all prior Placements and not yet sold by the Agents and (ii) all Placement Shares contemplated to be issued by the Placement Notice relating to such Placement.
(b) No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state or foreign or other governmental, administrative or self-regulatory authority during the period of effectiveness of the Registration Statement, the response to which might reasonably require any amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state or foreign or other governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) No Misstatement or Material Omission. The Agents shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Representative’s opinion is material, or omits to state a fact that in the Representative’s opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) Material Changes. Except as contemplated and appropriately disclosed in the Prospectus, or disclosed in the Company’s reports filed with the Commission, in each case at the time the applicable Placement Notice is delivered, there shall not have been any material adverse change, on a consolidated basis, in the authorized share capital of the Company and its Subsidiaries, or any material adverse effect on the Condition of the Company, or any development that may reasonably be expected to cause a material adverse effect on the Condition of the Company, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities by any rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of the Company’s securities, the effect of which, in the sole judgment of the Representative (without relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Certificates. The Agents shall have received the certificates required to be delivered pursuant to Section 8(m) and Section 8(n) on or before the date on which delivery of such certificates are required pursuant to Section 8(m) and Section 8(n).
(f) Legal Opinions. The Agents shall have received the opinions of counsel to the Company and the Selling Shareholder required to be delivered pursuant Section 8(o) on or before the date on which such delivery of such opinions are required pursuant to Section 8(o). In addition, the Agents shall have received the negative assurance letter of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Agents, on such dates and with respect to such matters as the Representative may reasonably request.
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(g) CFO Certificate. The Agents shall have received the CFO Certificate required to be delivered pursuant to Section 8(l) on or before the date on which delivery of such certificate is required pursuant to Section 8(l).
(h) Comfort Letter. The Agents shall have received the Comfort Letter required to be delivered pursuant Section 8(p) on or before the date on which such delivery of such letter is required pursuant to Section 8(p).
(i) Approval for Listing; No Suspension. The Placement Shares shall have either been (i) approved for listing, subject to notice of issuance, on the Principal Trading Market, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Principal Trading Market at or prior to the issuance of the Placement Notice. Trading in the Common Shares shall not have been suspended on such market.
(j) Other Materials. On each date on which the Company or the Selling Shareholder is required to deliver a certificate pursuant to Section 8(m) or Section 8(n), respectively, the Company or the Selling Shareholder, as applicable, shall have furnished to the Agents such appropriate further information, certificates, opinions and documents as the Representative may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof. The Company or the Selling Shareholder, as applicable, will furnish the Agents with such conformed copies of such opinions, certificates, letters and other documents as the Representative shall reasonably request.
(k) Securities Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(l) No Termination Event. There shall not have occurred any event that would permit the Agents to terminate this Agreement pursuant to Section 13(a).
11. Indemnification and Contribution.
(a) Company Indemnification. The Company will indemnify and hold harmless the Agents, each of the Agents’ respective directors, officers, employees and agents and their respective affiliates and each person, if any, who controls an Agent (each, a “Company Indemnified Party”) against any losses, claims, damages or liabilities, joint or several, to which such Company Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, the Disclosure Package, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement to the Registration Statement, the Prospectus or the Disclosure Package, or in any application or other document executed by or on behalf of the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Placement Shares under the securities laws thereof or filed with the Commission, or arise out of or are based upon the omission or alleged omission to state in the Registration Statement, the Prospectus, the Disclosure Package, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement to the Registration Statement, the Prospectus, or the Disclosure Package or in any application or other document executed by or on behalf of the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Placement Shares under the securities laws thereof or filed with the Commission a material fact required to be stated in it or necessary to make the statements in it not misleading, and will reimburse such Company Indemnified Party for any reasonable legal expenses of counsel for such Company Indemnified Party, and for other expenses reasonably incurred by such Company Indemnified Party in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus or the Disclosure Package, or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Agents through the Representative expressly for use therein.
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(b) The Selling Shareholder’s Indemnification. The Selling Shareholder will indemnify and hold harmless the Agents, each of the Agents’ respective directors, officers, employees and agents and their respective affiliates and each person, if any, who controls an Agent (each, a “Selling Shareholder Indemnified Party”) against any losses, claims, damages or liabilities, joint or several, to which such Selling Shareholder Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, the Disclosure Package, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement to the Registration Statement, the Prospectus or the Disclosure Package, or in any application or other document executed by or on behalf of the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Placement Shares under the securities laws thereof or filed with the Commission, or arise out of or are based upon the omission or alleged omission to state in the Registration Statement, the Prospectus, the Disclosure Package, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement to the Registration Statement, the Prospectus, or the Disclosure Package or in any application or other document executed by or on behalf of the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Placement Shares under the securities laws thereof or filed with the Commission a material fact required to be stated in it or necessary to make the statements in it not misleading, and will reimburse such Selling Shareholder Indemnified Party for any reasonable legal expenses of counsel for such Selling Shareholder Indemnified Party, and for other expenses reasonably incurred by such Selling Shareholder Indemnified Party in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Selling Shareholder will only be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder specifically for use therein, it being understood and agreed that the only such information by the Selling Shareholder consists of the following information: the Selling Shareholder’s name and corresponding share amounts (including beneficial ownership information) set forth in the section titled “Selling Shareholder” in the Prospectus and the Selling Shareholder’s address (the “Selling Shareholder Information”).
(c) The Agents’ Indemnification. The Agents, severally and not jointly, will indemnify and hold harmless the Company, each of its directors and each of its officers and each person, if any, who controls the Company, and the Selling Shareholder (each, an “Agent Indemnified Party”) against any losses, claims, damages or liabilities to which such Agent Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendments thereto), the Prospectus (or any amendment or supplement thereto), the Disclosure Package or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus or any supplement thereto, the Disclosure Package or the Issuer Free Writing Prospectus, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement (or any amendments thereto), the Prospectus (or any amendment or supplement thereto), the Disclosure Package, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Agents through the Representative expressly for use therein; and will reimburse such Agent Indemnified Party for any legal or other expenses reasonably incurred by such Agent Indemnified Party in connection with investigating or defending any such action or claim as such expenses are incurred.
(d) Procedure.
(i) Each indemnified party shall give written notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this Section 11. In the case of
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parties indemnified pursuant to Section 11(a) and Section 11(b) above, counsel to the indemnified parties shall be selected by the Agents, and, in the case of parties indemnified pursuant to Section 11(c) above, counsel to the indemnified parties shall be selected by the Company and the Selling Shareholder. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any relevant local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 11 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(ii) The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying person agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested that an indemnifying party reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by this section, the indemnifying person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into (A) more than 60 days after receipt by the indemnifying party of such request and (B) more than 30 days after receipt by the indemnifying party of the proposed terms of such settlement and (ii) the indemnifying party shall not have reimbursed the indemnified person in accordance with such request prior to the date of such settlement.
(e) Contribution. If the indemnification provided for in this Section 11 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Shareholder on the one hand and the Agents on the other from the offering of the Placement Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Shareholder on the one hand and the Agents on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Shareholder on the one hand and the Agents on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Shares (before deducting expenses) received by the Selling Shareholder, bear to the total underwriting discounts, commissions and other fees received by the Agents. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Selling Shareholder or the Agents and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Selling Shareholder and the Agents agree that it would not be just and equitable if contributions pursuant to this subsection (e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), the Agents shall not be required to contribute any amount in excess of the amount by which the total price at which the Placement
26
Shares distributed to the public by it were offered to the public exceeds the amount of any damages which the Agents have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(f) Obligations. The obligations of the Company and the Selling Shareholder under this Section 11 shall be in addition to any liability which the Company or the Selling Shareholder may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls an Agent within the meaning of the Securities Act; and the obligations of the Agents under this Section 11 shall be in addition to any liability which the Agents may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act. The Agents’ respective obligations to contribute pursuant to this Section 11 are several in proportion to the total underwriting discounts, commissions and other fees received by the Agents and not joint.
12. Representations and Agreements to Survive Delivery. All representations and warranties of the Company and the Selling Shareholder herein or in certificates delivered pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of the Agents, any controlling persons, the Selling Shareholder or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
13. Termination.
(a) The Agents shall have the right to terminate this Agreement at any time by giving notice as hereinafter specified if (i) any material adverse effect on the Condition of the Company has occurred, or any development that is reasonably expected to cause a material adverse effect on the Condition of the Company has occurred or any other event has occurred which, in the reasonable judgment of the Representative, may materially impair the Agents’ ability to proceed with the offering to sell the Placement Shares, (ii) the Selling Shareholder shall have failed, refused or been unable, at or prior to any Settlement Date, to perform any agreement on its part to be performed hereunder, (iii) any other condition of the Agents’ obligations hereunder is not fulfilled, or (iv) any suspension or limitation of trading in the shares of Common Shares of the Company on the Principal Trading Market shall have occurred; provided, however, for purposes of determining whether the Agents shall have the right to terminate this Agreement under subclauses (ii) or (iii) above, in the case of any failure of the Company or the Selling Shareholder to deliver (or cause another person to deliver) any certification, opinion, or letter required under Section 8, the Agents’ right to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more than five (5) days from the date such delivery was required. Any such termination shall be without liability of any party to any other party except that the provisions of Section 8(g) (Expenses), Section 11 (Indemnification), Section 12 (Survival of Representations), Section 13(f) (Termination), Section 18 (Applicable Law; Consent to Jurisdiction) and Section 19 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If the Agents elect to terminate this Agreement as provided in this Section 13(a), the Agents shall provide the required notice as specified in Section 14 (Notices).
(b) Each of the Selling Shareholder and the Company shall have the right to terminate this Agreement in its sole discretion at any time by giving five (5) days’ notice as hereinafter specified. Any such termination shall be without liability of any party to any other party except that the provisions of Section 8(g), Section 8(i), Section 11, Section 12, Section 13(f), Section 18 and Section 19 hereof shall remain in full force and effect notwithstanding such termination.
(c) In addition to, and without limiting the Agents’ rights under Section 13(a), the Agents shall have the right to terminate this Agreement in their sole discretion at any time after the date of this Agreement by giving five (5) days’ notice as hereinafter specified. Any such termination shall be without liability of any party to any other party except that the provisions of Section 8(g), Section 8(i), Section 11, Section 12, Section 13(f), Section 18 and Section 19 hereof shall remain in full force and effect notwithstanding such termination.
(d) This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), 13(b) or 13(c) above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement shall in all cases be deemed to provide that Section 8(g), Section 8(i), Section 11, Section 12, Section 13(f), Section 18 and Section 19 shall remain in full force and effect.
27
(e) Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agents or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall settle in accordance with the provisions of this Agreement.
(f) In the event that either of the Company or the Selling Shareholder terminates this Agreement, as permitted under Section 13(b), each of the Company and the Selling Shareholder shall be under no continuing obligation pursuant to this Agreement to utilize the services of the Agents in connection with any sale of securities of the Company or to pay any compensation to the Agents other than compensation with respect to sales of Placement Shares subscribed on or before the termination date and the Company shall be free to engage other placement agents and underwriters from and after the termination date with no continuing obligation to the Agents.
14. Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement shall be in writing and if sent to the Agents, shall be delivered to the Representative on behalf of the Agents:
Canaccord Genuity LLC
99 High Street, Suite 1200
Boston, MA 02110
Attention: ECM, General Counsel
[omitted]
With a copy to:
ATB Capital Markets Inc.
66 Wellington Street West, Suite 3530
Toronto, Ontario M5K 1A1
Attention: ECM
[omitted]
And a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
222 Bay Street
Suite 1750
Toronto, Ontario M5K 1J5
Attention: Ryan J. Dzierniejko
[omitted]
And a copy to:
Stikeman Elliott LLP
5300 Commerce Court West, 199 Bay Street
Toronto, ON M5L 1B9
Attention: David Weinberger
[omitted]
or if sent to the Company, shall be delivered to:
Docebo Inc.
366 Adelaide Street West, Suite 701
Toronto, ON M5V 1R9
Attention: Sukaran Meta
[omitted]
28
With a copy to:
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304
Attention: John McKenna
[omitted]
And a copy to:
Goodmans LLP
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
Attention: Brad Ross
[omitted]
or if sent to the Selling Shareholder, shall be delivered to:
Intercap Equity Inc.
261 Davenport Road, Suite 200
Toronto, Ontario M5R 1K3
Attention: Jason Chapnik
[omitted]
With a copy to:
Meretsky Law Firm
121 King Street West
Toronto, ON M5H 3T9
Attention: Jason Meretsky
[omitted]
Each party to this Agreement may change such address for notices by sending to the other party to this Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., eastern time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier, (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid), and (iv) if sent by email, on the Business Day on which receipt is confirmed by the individual to whom the notice is sent, other than via auto-reply. For purposes of this Agreement, “Business Day” shall mean any day on which the Principal Trading Market and commercial banks in the city of New York are open for business.
15. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Selling Shareholder, the Company and the Agents and their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof. References to any of either of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, provided, however, that the Agents may assign their rights and obligations hereunder to an affiliate of an Agent without obtaining the Selling Shareholder’s or the Company’s consent.
16. Adjustments for Share Splits. The parties acknowledge and agree that all share related numbers contained in this Agreement shall be adjusted to take into account any share split, share dividend or similar event effected with respect to the Shares.
29
17. Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Selling Shareholder, the Company and the Agents. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
18. Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
19. Waiver of Jury Trial. The Selling Shareholder, the Company and the Agents each hereby irrevocably waive any right either may have to a trial by jury in respect of any claim based upon or arising out of this agreement or any transaction contemplated hereby.
20. Absence of Fiduciary Duties. The parties acknowledge that they are sophisticated in business and financial matters and that each of them is solely responsible for making its own independent investigation and analysis of the transactions contemplated by this Agreement. They further acknowledge that the Agents have not been engaged by the Selling Shareholder or the Company to provide, and have not provided, financial advisory services in connection with the terms of the offering and sale of the Shares nor have the Agents assumed at any time a fiduciary relationship to the Selling Shareholder or to the Company in connection with such offering and sale. The parties also acknowledge that the provisions of this Agreement fairly allocate the risks of the transactions contemplated hereby among them in light of their respective knowledge of the Selling Shareholder and the Company and their respective abilities to investigate its affairs and business in order to assure that full and adequate disclosure has been made in the Registration Statement and the Prospectus (and any amendments and supplements thereto). Each of the Selling Shareholder and the Company hereby waives, to the fullest extent permitted by law, any claims it may have against the Agents for breach of fiduciary duty or alleged breach of fiduciary duty and agrees the Agents shall have no liability (whether direct or indirect) to the Selling Shareholder or the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Selling Shareholder or the Company, including shareholders, employees or creditors of the Selling Shareholder or the Company.
21. Waiver of Immunity. With respect to any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled, and with respect to any such suit or proceeding, each party waives any such immunity in any court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such suit or proceeding, including, without limitation, any immunity pursuant to the U.S. Foreign Sovereign Immunities Act of 1976, as amended.
22. Judgment of Currency. The obligation of the Selling Shareholder or the Company in respect of any sum due to the Agents under this Agreement shall, notwithstanding any judgment in a currency other than U.S. dollars or any other applicable currency (the “Judgment Currency”), not be discharged until the first business day, following receipt by the Agents of any sum adjudged to be so due in the Judgment Currency, on which (and only to the extent that) the Agents may in accordance with normal banking procedures purchase U.S. dollars or any other applicable currency with the Judgment Currency; if the U.S. dollars or other applicable currency so purchased are less than the sum originally due to the Agents hereunder, the Selling Shareholder or the Company, as applicable, agrees, as a
30
separate obligation and notwithstanding any such judgment, to indemnify the Agents against such loss. If the U.S. dollars or other applicable currency so purchased are greater than the sum originally due to the Agents hereunder, the Agents agree to pay to the Selling Shareholder or the Company, as applicable, an amount equal to the excess of the U.S. dollars or other applicable currency so purchased over the sum originally due to the Agents hereunder.
23. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or email transmission.
[Signature Pages Follow]
31
If the foregoing accurately reflects your understanding and agreement with respect to the matters described herein please indicate your agreement by countersigning this Agreement in the space provided below.
| Very truly yours, | ||
| Docebo Inc. | ||
| By: | /s/ Sukaran Mehta | |
| Name: Sukaran Mehta | ||
| Title: Interim Chief Financial Officer | ||
| Intercap Equity Inc. | ||
| By: | /s/ Jason Chapnik | |
| Name: Jason Chapnik | ||
| Title: Chairman | ||
| Canaccord Genuity LLC | ||
| By: | /s/ Jennifer Pardi | |
| Name: Jennifer Pardi | ||
| Title: Managing Director | ||
| Acting on behalf of itself and as Representative of the Agents | ||
SCHEDULE 1
The Authorized Representatives of the Selling Shareholder are as follows:
Jason Chapnik
James Merkur
Adam Sadowski
The Authorized Representatives of the Company are as follows:
Sukaran Mehta
If a Placement Notice is sent to the Authorized Representative of the Company pursuant to Section 2(a) of the Agreement, copies of such Placement Notice shall also be sent to:
Milson Yu, Cooley LLP
Brad Ross, Goodmans LLP
The Authorized Representatives of Canaccord, acting as representative on behalf of the Agents, are as follows:
Jennifer Pardi
Brian O’Connor
Michael Wright
EXHIBIT A
OFFICER’S CERTIFICATE
I, [name of executive officer], the [title of executive officer] of Docebo Inc. (the “Company”), do hereby certify in such capacity and on behalf of the Company, and not in my personal capacity, pursuant to Section 8(m) of the Equity Distribution Agreement dated as of January 4, 2022 (the “Distribution Agreement”) between the Company, Intercap Equity Inc., Canaccord Genuity LLC and ATB Capital Markets USA Inc., to the best of my knowledge that:
(i) The representations and warranties of the Company in Section 6 of the Distribution Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or material adverse effect on the Condition of the Company, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
(ii) The Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Distribution Agreement at or prior to the date hereof.
| Date: | By: |
| ||||
| Name: | ||||||
| Title: |
EXHIBIT B
OFFICER’S CERTIFICATE
I, [name of executive officer], the [title of executive officer] of Intercap Equity Inc. (the “Selling Shareholder”), do hereby certify in such capacity and on behalf of the Selling Shareholder, and not in my personal capacity, pursuant to Section 8(n) of the Equity Distribution Agreement dated as of January 4, 2022 (the “Distribution Agreement”) between the Selling Shareholder, Docebo Inc., Canaccord Genuity LLC and ATB Capital Markets USA Inc., to the best of my knowledge that:
(i) The representations and warranties of the Selling Shareholder in Section 7 of the Distribution Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or material adverse effect on the Selling Shareholder’s ability to perform its obligations thereunder, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
(ii) The Selling Shareholder has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Distribution Agreement at or prior to the date hereof.
| Date: | By: |
| ||||
| Name: | ||||||
| Title: |
Exhibit 4.1
| Request ID: 018870307 | Province of Ontario | Date Report Produced: 2016/04/21 | ||
| Demande n°: | Province de I’Ontario | Document produit le: | ||
| Transaction ID: 060892270 | Ministry of Government Services | Time Report Produced: 09:53:37 | ||
| Transaction n°: | Ministére des Services gouvernementaux | lmprimé à: | ||
| Category ID: CT | ||||
| Catégorie: |
Certificate of Incorporation
Certificat de constitution
| This is to certify that | Ceci certifie que | |||
| DOCEBO CANADA INC. | ||||
| Ontario Corporation No. | Numéro matricule de la personne morale en Ontario | |||
| 002514777 | ||||
| is a corporation incorporated, | est une société constituée aux termes | |||
| under the laws of the Province of Ontario. | des lois de la province de I’Ontario. | |||
| These articles of incorporation | Les présents statuts constitutifs | |||
| are effective on | entrent en vigueur le | |||
| APRIL 21 AVRIL, 2016 | ||||
|
| ||||
| Director/Directeur | ||||
| Business Corporations Act/Loi sur les sociétés par actions | ||||
| Request ID / Demande n° 18870307 |
Page: 1
Ontario Corporation Number Numéro de la compagnie en Ontario 2514777 |
| FORM 1 | FORMULE NUMÉRO 1 | |||
| BUSINESS CORPORATIONS ACT | / | LOI SUR LES SOCIÉTÉS PAR ACTIONS | ||
ARTICLES OF INCORPORATION
STATUTS CONSTITUTIFS
| 1. | The name of the corporation is: | Dénomination sociale de la compagnie: | ||
| DOCEBO CANADA INC. | ||||
| 2. | The address of the registered office is: | Adresse du siège social: | ||
| MARS CENTRE, HERITAGE BUILDIN Suite 145 | ||||
| 101 COLLEGE STREET | ||||
| (Street & Number, or R.R. Number & if Multi-Office Building give Room No.) (Rue et numéro, ou numéro de la R.R. et, s’il s’agit édifice à bureau, numéro du bureau) | ||||
| TORONTO | ONTARIO | |||
| CANADA | M5G 1L7 | |||
| (Name of Municipality or Post Office) | (Postal Code / Code postal) | |||
| (Nom de la municipalité ou du bureau de poste) | ||||
| 3. | Number (or minimum and maximum number) of directors is: | Nombre (ou nombres minimal et maximal) d’administrateurs: | ||
| Minimum 1 | Maximum 10 | |||
| 4. | The first director(s) is / are: | Premier(s) administrateur(s): | ||
| First name, initials and surname | Resident Canadian State Yes or No | |||
| Prénom, initiales et nom de famille | Résident Canadian Oui/Non | |||
| Address for service, giving Street & No. | Domicile élu, y compris la rue et le | |||
| or R.R. No., Municipality and Postal Code | numéro, le numéro de la R.R., ou le nom | |||
| de la municipalité et le code postal | ||||
| * | CLAUDIO | NO | ||
| ERBA | ||||
| VIA A. MORO 1 | ||||
| MACHERIO MONZA AND BRIANZA | ||||
| ITALY 20846 | ||||
| Request ID / Demande n° 18870307 |
Page: 2
Ontario Corporation Number Numéro de la compagnie en Ontario 2514777 |
| 4. The first director(s) is/are: |
Premier(s) administrateur(s): | |||
| First name, initials and surname | Resident Canadian State Yes or No | |||
| Prénom, initiales et nom de famille | Résident Canadien Oui/Non | |||
| Address for service, giving Street & No. | Domicile éIu, y compris la rue et le | |||
| or R.R. No., Municipality and Postal Code | numéro, le numéro de la R.R., ou le nom | |||
| de la municipalité et le code postal | ||||
| * | DANIEL | YES | ||
| KLASS | ||||
| 8 HILLHOLM ROAD | ||||
| TORONTO ONTARIO | ||||
| CANADA M5P 1M2 | ||||
| * | JASON | YES | ||
| CHAPNIK | ||||
| 33 STRATHEARN ROAD | ||||
| TORONTO ONTARIO | ||||
| CANADA M6C 1R2 | ||||
| Request ID / Demande n° 18870307 |
Page: 3
Ontario Corporation Number Numéro de la compagnie en Ontario 2514777 |
| 5. | Restrictions, if any, on business the corporation may carry on or on powers the corporation may exercise. |
Limites, s’il y a lieu, imposées aux activités commerciales ou aux pouvoirs de la compagnie.
None.
| 6. | The classes and any maximum number of shares that the corporation is authorized to issue: |
Catégories et nombre maximal, s’il y a lieu, d’actions que la compagnie est autorisée à émettre:
The Corporation is authorized to issue an unlimited number of common shares.
| Request ID / Demande n° 18870307 |
Page: 4
Ontario Corporation Number Numéro de la compagnie en Ontario 2514777 |
| 7. | Rights, privileges, restrictions and conditions (if any) attaching to each class of shares and directors authority with respect to any class of shares which may be issued in series: |
Droits, privilèges, restrictions et conditions, s’il y a lieu, rattachés à chaque catégorie d’actions et pouvoirs des administrateurs relatifs à chaque catégorie d’actions que peut être émise en série:
Not applicable.
| Request ID / Demande n° 18870307 |
Page: 5
Ontario Corporation Number Numéro de la compagnie en Ontario 2514777 |
| 8. | The issue, transfer or ownership of shares is / is not restricted and the restrictions (if any) are as follows: |
L’émission, le transfert ou la propriété d’actions est/n’est pas restreinte. Les restrictions, s’il y a lieu, sont les suivantes:
No share of the Corporation may be transferred unless its transfer complies with the restriction on the transfer of securities set out in paragraph 9 hereof.
| Request ID / Demande n° 18870307 |
Page: 6
Ontario Corporation Number Numéro de la compagnie en Ontario 2514777 |
| 9. | Other provisions, (if any, are): |
Autres dispositions, s’il y a lieu:
Without in any way restricting the powers conferred upon the Corporation or its board of directors by the Business Corporations Act, as now enacted or as the same may from time to time be amended, re-enacted or replaced, the board of directors may from time to time, without authorization of the shareholders, in such amounts and on such terms as it deems expedient:
(a) borrow money upon the credit of the Corporation;
(b) issue, re-issue, sell or pledge debt obligations of the Corporation;
(c) subject to the provisions of the Business Corporations Act, as now enacted or as the same may from time to time be amended, re-enacted or replaced, give a guarantee on behalf of the Corporation to secure performance of an obligation of any person; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the Corporation owned or subsequently acquired, to secure any obligation of the Corporation.
The board of directors may from time to time delegate to a director, a committee of directors or an officer of the Corporation any or all of the powers conferred on the board as set out above, to such extent and in such manner as the board shall determine at the time of such delegation.
No securities of the Corporation, other than non-convertible debt securities, shall be transferred without either:
(a) the approval of the directors of the Corporation expressed by a resolution passed at a meeting of the board of directors or by a resolution in writing signed by all of the directors entitled to vote on that resolution at a meeting of directors; or
(b) the approval of the holders of shares of the Corporation carrying at least a majority of the votes entitled to be cast at a meeting of shareholders, expressed by a resolution passed at a meeting of the holders of such shares or by an instrument or instruments in writing signed by the holders of a majority of such shares.
| Request ID / Demande n° 18870307 |
Page: 7
Ontario Corporation Number Numéro de la compagnie en Ontario 2514777 |
| 10. | The names and addresses of the incorporators are |
Nom et adresse des fondateurs
First name, initials and last name Prénom, initiale et nom de
or corporate name famille ou dénomination sociale
Full address for service or address of registered office or of principal place of business giving street & No. or R.R. No., municipality and postal code
Domicile élu, adresse du siège social au adresse de l’établissement principal, y compris la rue et le numéro, le numéro de la R.R., le nom de la municipalité et le code postal
| * | CLAUDIO ERBA |
VIA A. MORO 1
MACHERIO MONZA AND BRIANZA
ITALY 20846
| * | DANIEL KLASS |
8 HILLHOLM ROAD
TORONTO ONTARIO
CANADA M5P 1M2
| * | JASON CHAPNIK |
33 STRATHEARN ROAD
TORONTO ONTARIO
CANADA M6C 1R2
1A
Docebo Canada Inc.
(the “Corporation”)
The articles of the Corporation are amended in accordance with the Articles of Amendment as follows:
| (a). | To change the name of the Corporation from “Docebo Canada Inc.” to “Docebo Inc.”. |
| (b). | To change the minimum and maximum number of directors from a minimum of one (1) and a maximum of ten (10) to a minimum of three (3) and a maximum of ten (10). |
| (c). | To delete, in their entirety, the provisions of Article 8 of the Articles of Incorporation of the Corporation, effectively removing the restrictions on the transfer of the Corporation’s shares and replace with “None”. |
| (d). | To delete, in their entirety, the provisions of Article 9 of the Articles of Incorporation of the Corporation, effectively removing the other provisions and replace with “None”. |
| (e). | To change the 237,667 issued and outstanding Common shares of the Corporation into an aggregate of 23,766,700 Common shares on the basis of 100 Common shares for each currently issued and outstanding Common share. No fractional shares shall be issued as a result of this change and the number of shares received by each holder upon the change shall be rounded off to the nearest whole number. |
| (f). | To create an unlimited number of Preferred shares, Issuable in Series. |
| (g). | To declare that the authorized capital of the Corporation, after giving effect to the foregoing, shall consist of: |
| i. | an unlimited number of Common shares; and |
| ii. | an unlimited number of Preferred shares, Issuable in Series. |
| (h). | To provide for the rights, privileges, restrictions and conditions attaching to the Common shares and the Preferred shares, Issuable in Series as provided for below: |
| A. | COMMON SHARES |
| 1. | Voting Rights |
The holder of a Common Share shall be entitled to one vote for each Common Share held at all meetings of shareholders of the Corporation, other than meetings at which only the holders of another class or series of shares are entitled to vote separately as a class or series.
| 2. | Dividend |
Subject to the prior rights of the holders of any Preferred Shares and to any other shares ranking senior to the Common Shares with respect to priority in the payment of dividends, the holders of
1B
the Common Shares shall be entitled to receive dividends and the Corporation shall pay dividends thereon, if, as and when declared by the directors out of the moneys of the Corporation properly applicable to the payment of dividends, in such amount and in such form as the board of directors may from time to time determine, and all dividends which the directors may declare on the Common Shares shall be declared and paid in equal amounts per share on all Common Shares at the time outstanding.
| 3. | Dissolution |
In the event of the dissolution, liquidation or winding-up of the Corporation, whether voluntary or involuntary, or any other distribution of assets of the Corporation among its shareholders for the purpose of winding up its affairs, subject to the prior rights of the holders of any Preferred Shares and to any other shares ranking senior to the Common Shares with respect to priority in the distribution of assets upon dissolution, liquidation or winding-up, the holders of the Common Shares shall be entitled to receive the remaining property and assets of the Corporation.
| B. | PREFERRED SHARES |
| 1. | Preferred Shares Issuable in Series |
The Preferred Shares may, at any time and from time to time, be issued in one or more series, each series to consist of such number of shares as may, before the issue thereof, be fixed by the directors of the Corporation. The directors of the Corporation may, before issuance and subject as hereinafter provided, determine the designation, rights, privileges, restrictions and conditions attaching to the Preferred Shares of each series including, without limiting the generality of the foregoing:
| (a) | the rate, amount or method of calculation of any dividends, whether cumulative, non-cumulative or partially cumulative, and whether such rate, amount or method of calculation shall be subject to change or adjustment in the future, the currency or currencies of payment, the date or dates and place or places of payment thereof and the date or dates from which any such dividends shall accrue and any preference of such dividends; |
| (b) | any rights of redemption and/or purchase and the redemption or purchase prices and terms and conditions of any such rights; |
| (c) | any rights of retraction vested in the holders of Preferred Shares of such series and the prices and terms and conditions of any such rights and whether any other rights of retraction may be vested in such holders in the future; |
| (d) | any voting rights; |
| (e) | any conversion rights; |
| (f) | any rights to receive the remaining property of the Corporation upon dissolution, liquidation or winding-up and the amount and preference of any such rights; |
| (g) | any sinking fund or purchase fund; and |
1C
| (h) | any other provisions attaching to any such series of the Preferred Shares; |
the whole subject to the issue by the Director appointed under the Business Corporations Act (Ontario) of a certificate of amendment in respect of the articles of amendment in prescribed form to designate a series of Preferred Shares.
6. The amendment has been duly authorized as required by sections 168 and 170 (as applicable) of the Business Corporations Act. La modification a été dûment autorisée conformément aux articles 168 et 170 (selon le cas) de la Loi sur les sociétés par actions. 7. The resolution authorizing the amendment was approved by the shareholders/directors (as applicable) of the corporation on Les actionnaires ou les administrateurs (selon le cas) de la société ont approuvé la résolution autorisant la modification le 2019-09-13 (Year, Months, Day) (année, Mois, jour) These articles are signed in duplicate. Les présents statuts sont signés en double exemplaire. DOCEBO CANADA INC. (Print name of corporation from Article 1 on page 1) (Veuillez écrir le nom de la société de l’article un à la page une). By/ Par: /s/ James Merkur Director (Signature) (Description of Office) (Signature) James Merkur (Fonction) 07119(2011/05) Page 2 of/de 2
Exhibit 4.2
AMENDED AND RESTATED BY-LAW NO. 1
Business Corporations Act (Ontario)
A by-law relating generally to the regulation of the business and affairs of
DOCEBO INC.
(the “Corporation”)
TABLE OF CONTENTS
| SECTION 1 GENERAL | 1 | |||||||
| 1.1 | Interpretation |
1 | ||||||
| 1.2 | Corporate Seal |
1 | ||||||
| 1.3 | Financial Year |
1 | ||||||
| 1.4 | Effective Date |
1 | ||||||
| 1.5 | Repeal |
1 | ||||||
| 1.6 | Banking Arrangements |
1 | ||||||
| SECTION 2 DIRECTORS | 2 | |||||||
| 2.1 | Number |
2 | ||||||
| 2.2 | Quorum |
2 | ||||||
| 2.3 | Election and Term |
2 | ||||||
| 2.4 | Removal |
2 | ||||||
| 2.5 | Calling of Meetings |
2 | ||||||
| 2.6 | Notice of Meetings |
2 | ||||||
| 2.7 | Meeting by Telephone or Electronic Facility |
2 | ||||||
| 2.8 | Chairperson |
3 | ||||||
| 2.9 | Voting at Meetings |
3 | ||||||
| 2.10 | Committees |
3 | ||||||
| SECTION 3 OFFICERS | 3 | |||||||
| 3.1 | General |
3 | ||||||
| 3.2 | Chairperson of the Board |
3 | ||||||
| 3.3 | President and Chief Executive Officer |
3 | ||||||
| 3.4 | Secretary |
3 | ||||||
| 3.5 | Other Officers |
4 | ||||||
| 3.6 | Variation of Powers and Duties |
4 | ||||||
| 3.7 | Term of Office |
4 | ||||||
| SECTION 4 PROTECTION OF DIRECTORS, OFFICERS AND OTHERS | 4 | |||||||
| 4.1 | Limitation of Liability |
4 | ||||||
| 4.2 | Indemnification of directors and officers |
4 | ||||||
| 4.3 | Right of indemnity not exclusive |
4 | ||||||
| 4.4 | Insurance |
5 | ||||||
| SECTION 5 SHAREHOLDERS | 5 | |||||||
| 5.1 | Quorum |
5 | ||||||
| 5.2 | Chairperson |
5 | ||||||
| 5.3 | Adjournment |
5 | ||||||
| 5.4 | Postponement |
5 | ||||||
| 5.5 | Votes to Govern |
5 | ||||||
| 5.6 | Meeting by Telephonic or Electronic Facility |
5 | ||||||
| 5.7 | Proxies |
6 | ||||||
| 5.8 | Scrutineers |
6 | ||||||
| 5.9 | Certificates for Shares |
6 | ||||||
| 5.10 | Replacement of Share Certificates |
6 | ||||||
| SECTION 6 ADVANCE NOTICE PROVISIONS | 6 | |||||||
| 6.1 | Nomination of Directors |
6 | ||||||
| 6.2 | Timely Notice |
7 | ||||||
| 6.3 | Manner of Timely Notice |
7 | ||||||
| 6.4 | Proper Form of Timely Notice |
8 | ||||||
| 6.5 | Determination of Eligibility |
9 | ||||||
| 6.6 | Waiver |
9 | ||||||
| 6.7 | Terms |
10 | ||||||
| SECTION 7 DIVIDENDS AND RIGHTS | 10 | |||||||
| 7.1 | Declaration of Dividends |
10 | ||||||
| 7.2 | Wire Transfers or Cheques |
10 | ||||||
| 7.3 | Non-Receipt of Wire Transfers or Cheques |
10 | ||||||
| 7.4 | Unclaimed Dividends |
10 | ||||||
| SECTION 8 EXECUTION OF INSTRUMENTS | 11 | |||||||
| 8.1 | Execution of Instruments |
11 | ||||||
| 8.2 | Electronic Signatures |
11 | ||||||
| SECTION 9 NOTICE | 11 | |||||||
| 9.1 | General |
11 | ||||||
| 9.2 | Joint Holders |
11 | ||||||
| 9.3 | Electronic Delivery |
12 | ||||||
| 9.4 | Computation of Time |
12 | ||||||
| 9.5 | Omissions and Errors |
12 | ||||||
| SECTION 10 FORUM SELECTION | 12 | |||||||
| 10.1 | Forum of Adjudication of Certain Disputes |
12 | ||||||
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SECTION 1
GENERAL
| 1.1 | Interpretation |
Unless otherwise defined, expressions used in this by-law shall have the same meanings as corresponding expressions in the Business Corporations Act (Ontario) (the “Act”).
| 1.2 | Corporate Seal |
The directors may, but need not, adopt a corporate seal, and may change a corporate seal that is adopted.
| 1.3 | Financial Year |
The financial year of the Corporation shall end on such date in each year as shall be determined from time to time by resolution of directors.
| 1.4 | Effective Date |
This by-law shall come into force when made by the directors in accordance with the Act.
| 1.5 | Repeal |
All previous by-laws of the Corporation are repealed as of the coming into force of this by-law. Such repeal shall not affect the validity of any act done or right, privilege, obligation or liability acquired or incurred under, or the validity of any contract or agreement made pursuant to, or the validity of any articles or predecessor charter documents of the Corporation obtained pursuant to, any such by-laws prior to its repeal. All officers and persons acting under any by-law so repealed shall continue to act as if appointed under the provisions of this by-law and all resolutions of the shareholders or the board or a committee of the board with continuing effect passed under any repealed by-law shall continue in full force and effect except to the extent inconsistent with this by-law and until amended or repealed.
| 1.6 | Banking Arrangements |
The banking business of the Corporation, or any part thereof, including, without limitation, the borrowing of money and the giving of security therefor, shall be transacted with such banks, trust companies or other bodies corporate or organizations as may from time to time be designated by or under the authority of the board. Such banking business or any part thereof shall be transacted under such agreements, instructions and delegations of powers as the board may from time to time by resolution prescribe or authorize.
SECTION 2
DIRECTORS
| 2.1 | Number |
The number of directors shall be not fewer than the minimum and not more than the maximum number of directors provided for in the articles. The board shall be comprised of the fixed number of directors as determined from time to time by special resolution of the shareholders or, if the special resolution empowers the board to determine the number, the resolution of the board (except that the number of directors determined by the board shall not exceed one and one-third times the number of directors required to have been elected at the last annual meeting of shareholders).
| 2.2 | Quorum |
A quorum for the transaction of business at any meeting of directors shall be a majority of the number of directors or such greater number of directors as the directors may from time to time determine, subject to the provisions of the Act.
| 2.3 | Election and Term |
The election of directors shall take place at each annual meeting of shareholders. A director not elected for an expressly stated term shall cease to hold office at the close of the first annual meeting following election or appointment. If an election of directors is not held at the proper time, the incumbent directors shall continue in office until their successors are elected.
| 2.4 | Removal |
Except as prohibited by the Act or the articles, the shareholders entitled to vote in an election of directors may remove any director from office at any time, with or without cause, by ordinary resolution.
| 2.5 | Calling of Meetings |
Meetings of the directors shall be held at such time and place as the chairperson of the board, the president and chief executive officer or any two directors may determine by giving notice in accordance with Section 2.6.
| 2.6 | Notice of Meetings |
Unless notice is waived in accordance with the Act, notice of the time and place of each meeting of directors must be given in the manner to each director by telephone, e-mail or prepaid mail not less than 48 hours’ before the time of the meeting, including, for greater certainty, the day on which the notice is given, provided that the first meeting immediately following a meeting of shareholders at which directors are elected may be held without notice if a quorum is present.
| 2.7 | Meeting by Telephone or Electronic Facility |
A meeting of directors or of a committee of directors may be held by means of a telephonic, electronic or other communication facility that permits all persons participating in the meeting to communicate adequately with each other, and a director participating in a meeting by such means is deemed to (a) consent to such meeting format and (b) be present at that meeting.
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| 2.8 | Chairperson |
The chairperson of any meeting of directors shall be the chairperson, or in his or her absence, the president and chief executive officer if a director, or in his or her absence or if the president and chief executive officer is not a director, a director chosen by the directors at the meeting.
| 2.9 | Voting at Meetings |
At meetings of directors, each director shall have one vote and questions shall be decided by a majority of votes; and in the case of an equality of votes, the chairperson of the meeting will not be entitled a second or casting vote.
| 2.10 | Committees |
Unless otherwise determined by the directors, subject to the Act, each committee of directors shall have the power to fix its quorum and to regulate its procedures.
SECTION 3
OFFICERS
| 3.1 | General |
The directors may from time to time appoint a chairperson of the board, a president and chief executive officer, a chief financial officer, one or more vice-presidents, a secretary, a treasurer and such other officers as the directors may determine from time to time.
| 3.2 | Chairperson of the Board |
The chairperson of the board, if any, shall be appointed from among the directors, shall, when present, be chair of the meetings of directors and shareholders and shall have such other powers and duties as the directors may determine from time to time.
| 3.3 | President and Chief Executive Officer |
Unless the directors otherwise determine, the president shall be appointed by the directors and shall be the chief executive officer of the Corporation and shall have general management of its business and affairs.
| 3.4 | Secretary |
The secretary shall give required notices to shareholders, directors, auditors and members of committees, act as secretary of meetings of directors and shareholders when present, keep and enter minutes of such meetings, maintain the corporate records of the Corporation, have custody of the corporate seal, if any, and shall have such other powers and duties as the directors or the president and chief executive officer may determine from time to time.
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| 3.5 | Other Officers |
Any other officer shall have such powers and duties as the directors or the president and chief executive officer may determine from time to time.
| 3.6 | Variation of Powers and Duties |
The directors may, from time to time, vary, add to or limit the powers and duties of any officer.
| 3.7 | Term of Office |
Each officer shall hold office until his or her successor is appointed, provided that the directors may at any time remove any officer from office but such removal shall not affect the rights of such officer under any contract of employment with the Corporation.
SECTION 4
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
| 4.1 | Limitation of Liability |
No director or officer of the Corporation shall be liable for the acts, omissions, failures, neglects or defaults of any other director, officer, employee or agent of the Corporation, or for any costs, charges or expenses of the Corporation resulting from any insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or upon which any of the monies of the Corporation shall be invested, or for any loss or damage arising from bankruptcy or insolvency, or in respect of any tortious acts of or relating to the Corporation or any other director, officer, employee or agent of the Corporation, or for any loss occasioned by an error of judgment or oversight on the part of any other director, officer, employee or agent of the Corporation, or for any other costs, charges or expenses of the Corporation occurring in connection with the execution of the duties of the director or officer, unless such costs, charges or expenses are incurred as a result of such person’s own wilful neglect, default or negligence. Nothing in this by-law, however, shall relieve any director or officer from the duty to act in accordance with the Act or from liability for any breach of the Act.
| 4.2 | Indemnification of directors and officers |
The Corporation shall indemnify any director or officer of the Corporation, any former director or officer of the Corporation or any individual who acts or acted at the Corporation’s request as a director or officer, or in a similar capacity, of another entity, and his or her heirs and legal representatives to the full extent permitted by applicable law.
| 4.3 | Right of indemnity not exclusive |
The provisions for indemnification contained in the bylaws of the Corporation will not be deemed exclusive of any other rights to which any person seeking indemnification may be entitled under any agreement, vote of shareholders or directors or otherwise, both as to action in his or her official capacity and as to action in another capacity, and will continue as to a person who has ceased to be a director, officer, employee or agent and will inure to the benefit of that person’s heirs and legal representatives.
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| 4.4 | Insurance |
The Corporation shall purchase and maintain insurance for the benefit of any person referred to in the preceding section to the extent permitted by the Act.
SECTION 5
SHAREHOLDERS
| 5.1 | Quorum |
A quorum for the transaction of business at a meeting of shareholders shall be two persons present and entitled to vote at the meeting that hold or represent by proxy not less than 25% of the votes attached to the outstanding shares of the Corporation entitled to vote at the meeting.
| 5.2 | Chairperson |
The chairperson of any meeting of shareholders shall be the chairperson of the board, or in his or her absence, the president and chief executive officer, or in his or her absence, any person chosen by those present and entitled to vote a at the meeting.
| 5.3 | Adjournment |
The chairperson at a meeting of shareholders may, with the consent of the meeting, adjourn the meeting from time to time and place to place. Notice of such adjourned meeting will be provided in accordance with the Act.
| 5.4 | Postponement |
A meeting of shareholders may be postponed or cancelled by the board at any time prior to the date of the meeting.
| 5.5 | Votes to Govern |
At any meeting of shareholders every question shall, unless otherwise required by the articles, the by-laws or by law, be determined by a majority of the votes east on the question. In case of an equality of votes either upon a show of hands or upon a poll, the chairperson of the meeting shall not be entitled to a second or casting vote in addition to the vote or votes to which the chairperson is entitled as a shareholder or proxy nominee.
| 5.6 | Meeting by Telephonic or Electronic Facility |
The directors or shareholders who call a meeting of shareholders may determine that the meeting be held, in accordance in the regulations, if any, entirely by telephonic, electronic or other communication facility that permits all persons participating in the meeting to communicate adequately and makes provision for electronic voting at such meeting in accordance with the Act. A shareholder who, through those means, votes at a meeting or establishes a communications link to a meeting shall be deemed to be present at that meeting.
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| 5.7 | Proxies |
The board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours exclusive of non-business days, before which time proxies to be used at such meeting must be deposited. The board may, prior to or following the deadline, waive or extend the proxy cut-off, with or without notice.
| 5.8 | Scrutineers |
The chairperson at any meeting of shareholders may appoint one or more persons (who need not be shareholders) to act as scrutineer or scrutineers at the meeting.
| 5.9 | Certificates for Shares |
The shares of stock of the Corporation shall be represented by certificates, or shall be uncertificated shares that may be evidenced by a book-entry system (including a non-certificated inventory system) maintained by the registrar of such stock, or a combination of both. To the extent that shares are represented by certificates, such certificates shall be in such form as shall be approved by the directors. The certificates representing shares of stock of each class shall be signed by, or in the name of, the Corporation by the chairperson of the board, the president and chief executive officer, the chief financial officer, or any director. Any or all such signatures may be facsimiles. Although any director, officer, transfer agent or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such director, officer, transfer agent or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as if such director, officer, transfer agent or registrar were still such at the date of its issue.
The stock ledger and blank share certificates shall be kept by the secretary or by a transfer agent or by a registrar or by any other officer or agent designated by the directors.
| 5.10 | Replacement of Share Certificates |
Where the owner of a share certificate claims that the share certificate has been lost, apparently destroyed or wrongfully taken, the Corporation shall issue or cause to be issued a new certificate in place of the original certificate if the owner (i) so requests before the Corporation has notice that the share certificate has been acquired by a bona fide purchaser; (ii) files with the Corporation an indemnity bond (unless not required to do so by the Corporation) sufficient in the Corporation’s opinion to protect the Corporation and any transfer agent, registrar or other agent of the Corporation from any loss that it or any of them may suffer by complying with the request to issue a new share certificate; and (iii) satisfies any other reasonable requirements imposed from time to time by the Corporation.
SECTION 6
ADVANCE NOTICE PROVISIONS
| 6.1 | Nomination of Directors |
Subject only to the Act and Section 6.6, and for so long as the Corporation is a distributing corporation, only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation. Nominations of persons for election to the
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board may be made at any annual meeting of shareholders, or at any special meeting of shareholders if one of the purposes for which the special meeting was called was the election of directors:
| (a) | by or at the direction of the board, including pursuant to a notice of meeting; |
| (b) | by or at the direction or request of one or more shareholders pursuant to a proposal made in accordance with the provisions of the Act or a requisition of the shareholders made in accordance with the provisions of the Act; or |
| (c) | by any person (a “Nominating Shareholder”): |
| (i) | who, at the close of business in Toronto, Ontario on the date of the giving of the notice provided for below in this Section 6 and at the close of business in Toronto, Ontario on the record date for notice of such meeting of shareholders, is entered in the securities register of the Corporation as a holder of one or more shares carrying the right to vote at such meeting or who beneficially owns shares that are entitled to be voted at such meeting; and |
| (ii) | who complies with the notice procedures set forth below in this Section 6. |
| 6.2 | Timely Notice |
In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder, such person must have given timely notice thereof (in accordance with Section 6.3 below) in proper written form to the board (in accordance with Section 6.4 below).
| 6.3 | Manner of Timely Notice |
To be timely, a Nominating Shareholder’s notice to the board must be made:
| (a) | in the case of an annual meeting of shareholders (which includes an annual and special meeting), not less than 30 days prior to the date of the annual meeting of shareholders; provided, however, that in the event that (i) the annual meeting of shareholders is to be held on a date that is less than 50 days after the date (the “Notice Date”) on which the first public announcement of the date of the meeting was made, notice by the Nominating Shareholder may be made not later than the close of business in Toronto, Ontario on the tenth (10th) day following the Notice Date; and |
| (b) | in the case of a special meeting (which is not also an annual meeting) of shareholders called for the purpose of electing directors (whether or not called for other purposes as well), not later than the close of business in Toronto, Ontario on the fifteenth (15th) day following the day on which the first public announcement of the date of the special meeting of shareholders was made; |
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provided that, in either instance, if the Corporation uses “notice-and-access” (as defined in National Instrument 54-101 – Communications with Beneficial Owners of Securities of a Reporting Issuer) to send proxy-related materials to shareholders in connection with a meeting of the shareholders described in 6.3(a) or 6.3(b) above, and the Notice Date in respect of the meeting is not less than 50 days prior to the date of the applicable meeting, the notice must be received not less than 40 days prior to the date of the applicable meeting.
| 6.4 | Proper Form of Timely Notice |
To be in proper written form, a Nominating Shareholder’s notice to the board must set forth the following information:
| (a) | as to each person whom the Nominating Shareholder proposes to nominate for election as a director (each, a “Proposed Nominee”): |
| (i) | the name, age, business address and residential address of the person; |
| (ii) | the principal occupation or employment of the person for the past five years; |
| (iii) | the status of such person as a “resident Canadian” (as such term is defined in the Act); |
| (iv) | the class or series and number of shares in the capital of the Corporation which are controlled or which are owned beneficially or of record by the person as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice; |
| (v) | any derivatives or other economic or voting interests in the Corporation and any hedges implemented with respect to the Nominating Shareholders’ interests in the Corporation; |
| (vi) | any proxy, contract, arrangement, understanding or relationship pursuant to which the Nominating Shareholder has a right to vote any shares of the Corporation; and |
| (vii) | any other information relating to the person that would be required to be disclosed in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Act and Applicable Securities Laws; and |
| (b) | as to the Nominating Shareholder proposing a nomination and giving the notice: |
| (i) | the name, age, business address and residential address of the person; |
| (ii) | the class or series and number of shares in the capital of the Corporation which are controlled or which are owned beneficially or of record by the Nominating Shareholder as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice; |
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| (iii) | any derivatives or other economic or voting interests in the Corporation and any hedges implemented with respect to the Nominating Shareholders’ interests in the Corporation; |
| (iv) | any proxy, contract, arrangement, understanding or relationship pursuant to which the Nominating Shareholder has a right to vote any shares of the Corporation; |
| (v) | whether the Nominating Shareholder intends to deliver a proxy circular and form of proxy to any shareholders of the Corporation in connection with the election of directors; and |
| (vi) | any other information relating to the Nominating Shareholder that would be required to be made in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Act and Applicable Securities Laws. |
The Corporation may require that any Proposed Nominee furnish such other information as may be required to be contained in a dissident proxy circular or by applicable law or regulation to determine the independence of the Proposed Nominee or the eligibility of such Proposed Nominee to serve as a director of the Corporation or a member of any committee of the board. Such information, if received, will generally be summarized in the Corporation’s information circular.
All information to be provided in a timely notice pursuant to Section 6.4 above shall be provided as of the record date for determining shareholders entitled to vote at the meeting (if such date shall then have been publicly announced) and as of the date of such notice. The Nominating Shareholder shall update such information forthwith if there are any material changes in the information previously disclosed.
| 6.5 | Determination of Eligibility |
Subject to Section 6.6, no person shall be eligible for election as a director of the Corporation unless such person has been nominated in accordance with the provisions of this Section 6; provided, however, that nothing in this Section 6 shall be deemed to preclude discussion by a shareholder (as distinct from the nomination of directors) at a meeting of shareholders of any matter in respect of which such shareholder would have been entitled to submit a proposal pursuant to the Act. The chairperson of the applicable meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in the foregoing provisions and, if any proposed nomination is not in compliance with such foregoing provisions, to declare that such defective nomination shall be disregarded.
| 6.6 | Waiver |
Notwithstanding the foregoing, the board may, in its sole discretion, waive all or any of the requirements in this Section 6.
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| 6.7 | Terms |
For the purposes of this Section 6:
“Applicable Securities Laws” means the applicable securities legislation of each relevant province and territory of Canada, as amended from time to time, the rules, regulations and forms made or promulgated under any such statute and the published national instruments, multilateral instruments, policies, bulletins and notices of the securities commission and similar regulatory authority of each province and territory of Canada;
“public announcement” means disclosure in a press release reported by a national news service in Canada, or in a document publicly filed by the Corporation under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com; and
“Representatives” of a person means the affiliates and associates of such person, all persons acting jointly or in concert with any of the foregoing, and the affiliates and associates of any of such persons acting jointly or in concert, and “Representative” means any one of them.
SECTION 7
DIVIDENDS AND RIGHTS
| 7.1 | Declaration of Dividends |
Subject to the Act, the directors may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation.
| 7.2 | Wire Transfers or Cheques |
A dividend payable in money shall be paid, at the Corporation’s option, by (a) wire transfer, or (b) cheque to the order of each registered holder of shares of the class or series in respect of which it has been declared, and (i) sent, if by wire transfer, to such registered holder as per the wire instructions provided by such holder in the Corporation’s securities register, or (ii) mailed by prepaid ordinary mail, if by cheque, to such registered holder at the address of such holder in the Corporation’s securities register, unless such holder otherwise directs. In the case of joint holders, the wire transfer or cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and transferred to them as per the wire instructions, or mailed to them at their address, in the Corporation’s securities register. The issuance of the wire transfer or the mailing of such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold.
| 7.3 | Non-Receipt of Wire Transfers or Cheques |
In the event of non-receipt of any dividend wire transfer or cheque by the person to whom it is sent as aforesaid, the Corporation shall issue to such person a wire transfer or a cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as the directors may from time to time prescribe, whether generally or in any particular case.
| 7.4 | Unclaimed Dividends |
To the extent permitted by applicable law, any dividends unclaimed after a period of six years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.
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SECTION 8
EXECUTION OF INSTRUMENTS
| 8.1 | Execution of Instruments |
Contracts, deeds, mortgages, hypothecs, charges, conveyances, transfers, assignments or other documents or instruments in writing requiring the signature of the Corporation may be signed by any one director or officer of the Corporation, and all contracts, documents or instruments in writing so signed shall be binding upon the Corporation without any further authorization or formality. The directors are authorized from time to time by resolution to appoint any one or more officers or other persons on behalf of the Corporation either to sign contracts, documents or instruments in writing generally or to sign specific contracts, documents or instruments in writing.
| 8.2 | Electronic Signatures |
Any requirement under the Act or this by-law for a signature, or for a document to be executed, is satisfied by a signature or execution in electronic form if such is permitted by law and all requirements prescribed by law are met.
SECTION 9
NOTICE
| 9.1 | General |
A notice mailed to a shareholder, director, auditor or member of a committee shall be deemed to have been received if given if (i) delivered personally to the person to whom it is to be given; (ii) delivered to such person’s recorded address; (iii) if sent by prepaid mail to such person at the person’s recorded address; or (iv) otherwise communicated to such person by electronic means as permitted by the Act. The foregoing may not be construed so as to limit the manner or effect of giving notice by any other means of communication otherwise permitted by law. A notice so delivered will be deemed to have been given when it is delivered personally or to the recorded address as aforesaid; a notice so mailed shall be deemed to have been sent when deposited in a post office or public letter box and shall be deemed to have been received on the fifth day after so depositing; and a notice so sent by any electronic means will be deemed to have been given at the time specified under the Act. The secretary may change or cause to be changed the recorded address, including any address to which electronic communications of any kind may be sent, of any shareholder, director, officer or auditor in accordance with any information believed by the secretary to be reliable. The recorded address of a director shall be the latest address as shown in the records of the Corporation or in the most recent notice filed under the Corporations Information Act (Ontario), whichever is the more current.
| 9.2 | Joint Holders |
If two or more persons are registered as joint holders of any security, any notice may be addressed to all such joint holders but notice addressed to one of them constitutes sufficient notice to all of them.
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| 9.3 | Electronic Delivery |
The Corporation may satisfy the requirement to send any notice or document referred to in Section 9.1 by creating and providing an electronic document in compliance with the Act and the regulations thereunder.
| 9.4 | Computation of Time |
Except as otherwise provided, in computing the date when notice must be given under any provision of the articles or the by-laws requiring a specified number of days’ notice of any meeting or other event, the date of giving the notice shall be excluded and the date of the meeting or other event shall be included.
| 9.5 | Omissions and Errors |
Accidental omission to give any notice to any shareholder, director, auditor or member of a committee or non-receipt of any notice or any error in a notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice.
SECTION 10
FORUM SELECTION
| 10.1 | Forum of Adjudication of Certain Disputes |
Unless the Corporation consents in writing to the selection of an alternative forum, the Superior Court of Justice of the Province of Ontario, Canada and the appellate Courts therefrom (or, failing such court, any other “court” (as defined in the Act) having jurisdiction and the appellate Courts therefrom), shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation; (ii) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Corporation to the Corporation; (iii) any action or proceeding asserting a claim arising pursuant to any provision of the Act or the articles or the by-laws of the Corporation (as either may be amended from time to time); or (iv) any action or proceeding asserting a claim otherwise related to the “affairs” (as defined in the Act) of the Corporation. If any action or proceeding the subject matter of which is within the scope of the preceding sentence is filed in a Court other than a Court located within the Province of Ontario (a “Foreign Action”) in the name of any security holder, such security holder shall be deemed to have consented to (a) the personal jurisdiction of the provincial and federal Courts located within the Province of Ontario in connection with any action or proceeding brought in any such Court to enforce the preceding sentence and (b) having service of process made upon such security holder in any such action or proceeding by service upon such security holder’s counsel in the Foreign Action as agent for such security holder.
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DATED the 1st day of October, 2019.
| DOCEBO INC. | ||
| Per: | /s/ Jason Chapnik | |
| Name: | ||
| Title: | ||
Exhibit 5.1
|
|
Barristers & Solicitors
Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, Ontario M5H 2S7
Telephone: 416.979.2211 Facsimile: 416.979.1234 goodmans.ca |
January 4, 2022
Docebo Inc.
366 Adelaide Street West
Suite 701
Toronto, ON M5V 1R7
Dear Sirs/Mesdames
| Re: | Registration Statement on Form F-3 (the “Registration Statement”) |
We have acted as Canadian counsel to Docebo Inc., an Ontario corporation (the “Corporation”), in connection with the filing of a Registration Statement on Form F-3 (the “Registration Statement”) by the Corporation, under the U.S. Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration for offering and sale by Intercap Equity Inc. (the “Selling Shareholder”), a shareholder of the Corporation, of outstanding common shares of the Corporation (the “Common Shares”) with an aggregate offering price of up to $200,000,000 (the “ATM Shares”) and includes an equity distribution agreement prospectus (the “ATM Prospectus”), which covers the offering and sale by the Selling Shareholder of the ATM Shares that may be sold from time to time under an Equity Distribution Agreement dated January 4, 2022, among the Corporation, the Selling Shareholder, Canaccord Genuity LLC and ATB Capital Markets USA Inc.
The Registration Statement, including the ATM Prospectus, will provide for the registration by the Corporation of the resale of the ATM Shares.
We have examined the Registration Statement and all such corporate and public records, statutes and regulations and have made such investigations and have reviewed such other documents as we have deemed relevant and necessary and have considered such questions of law as we have considered relevant and necessary in order to give the opinion hereinafter set forth. As to various questions of fact material to such opinions which were not independently established, we have relied upon a certificate of an officer of the Corporation and have not independently verified such matters. In rendering this opinion, we have assumed the genuineness of all signatures; the legal capacity of all individuals; the veracity of the information contained in the foregoing documents; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; and the accuracy, completeness and authenticity of certificates of public officials.
For purposes of this opinion letter, we have also assumed that: (a) the effectiveness of the Registration Statement, and any amendments thereto (including post-effective amendments), will not have been terminated or rescinded; and (b) all securities will be offered and sold in compliance with applicable United States federal and state securities laws and in the manner stated in the Registration Statement and the prospectus supplement filed in the United States. We have not undertaken any independent investigation to verify the accuracy or completeness of any of the foregoing assumptions.
Based upon and subject to the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the ATM Shares are, validly issued, fully paid and non-assessable shares of the Corporation.
Where this opinion refers to any of the Common Shares as being issued as being “fully paid and non-assessable”, such opinion assumes that all required consideration (in whatever form) has been paid or provided.
The foregoing opinions are limited to the laws of the Province of Ontario and the federal laws of Canada applicable therein on the date of this opinion, and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or foreign. This opinion is expressed with respect to the laws in effect on the date of this opinion and we do not accept any responsibility to take into account or inform the addressee, or any other person, of any changes in law, facts or other developments subsequent to this date that do or may affect the opinion we express.
Notwithstanding the foregoing, we hereby consent to the filing of this opinion with the Securities and Exchange Commission (the “SEC”) as an exhibit to the Registration Statement. We also hereby consent to the use of our name under the headings “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
This opinion is expressed as of the date hereof and unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Very truly yours,
/s/ Goodmans LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Docebo Inc. of our report dated March 10, 2021 relating to the consolidated financial statements, which is filed as Exhibit 99.2 to Docebo Inc.’s Annual Report on Form 40-F for the year ended December 31, 2020. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/PricewaterhouseCoopers LLP
Chartered Professional Accountants, Licensed Public Accountants
Toronto, Canada
January 4, 2022
