For January 2021
|
Commission File Number: 1-34513
|
|
|
|||
CENOVUS ENERGY INC.
(Registrant)
|
||||
|
By:
|
/s/ Elizabeth A. McNamara
|
||
Name:
|
Elizabeth A. McNamara | |||
Title:
|
Assistant Corporate Secretary | |||
Exhibit No.
|
Description
|
|
99.1
|
||
99.2
|
||
99.3
|
||
99.4
|
||
99.5
|
||
99.6
|
||
99.7
|
||
99.8
|
||
99.9
|
Article 1 Interpretation
|
2
|
|
1.1
|
Definitions
|
2
|
1.2
|
Gender, Number, etc.
|
7
|
1.3
|
Interpretation not Affected by Headings, etc.
|
7
|
1.4
|
Day not a Business Day
|
7
|
1.5
|
Time of the Essence
|
7
|
1.6
|
Applicable Law
|
7
|
1.7
|
Monetary References
|
7
|
1.8
|
Language
|
7
|
1.9
|
Severability
|
7
|
1.10
|
Conflicts
|
8
|
Article 2 Issue of Warrants
|
8
|
|
2.1
|
Creation, Issue and Terms of Warrants
|
8
|
2.2
|
Registered Warrantholder not a Shareholder
|
8
|
2.3
|
Warrants to Rank pari passu
|
8
|
2.4
|
Form of Warrants, Certificated Warrants
|
8
|
2.5
|
Book Based Warrants
|
9
|
2.6
|
Warrant Certificates
|
11
|
2.7
|
Legends
|
12
|
2.8
|
Register of Warrants
|
13
|
2.9
|
Issue in Substitution for Warrant Certificates Lost, etc.
|
14
|
2.10
|
Exchange of Warrant Certificates
|
14
|
2.11
|
Transfer and Ownership of Warrants
|
14
|
2.12
|
Charges for Exchange and Transfer
|
15
|
2.13
|
Transferee Entitled to Registration
|
15
|
2.14
|
Cancellation of Surrendered Warrants
|
15
|
Article 3 Exercise of Warrants
|
16
|
|
3.1
|
Right and Method of Exercise of Warrants
|
16
|
3.2
|
Effect of Exercise of Warrants
|
17
|
3.3
|
Partial Exercise of Warrants; Fractions
|
18
|
3.4
|
Transfer Fees and Taxes
|
18
|
3.5
|
Warrant Agency
|
19
|
3.6
|
Expiration of Warrants
|
19
|
3.7
|
Cancellation of Surrendered Warrants
|
19
|
3.8
|
Accounting and Recording
|
19
|
3.9
|
Common Share Certificates
|
20
|
3.10
|
No Effective Registration Statement
|
20
|
3.11
|
U.S. Securities Law Matters
|
20
|
Article 4 Adjustment of Number of Common Shares
|
21
|
|
4.1
|
Adjustment of Number of Common Shares and Exercise Price
|
21
|
4.2
|
Entitlement to Common Shares on Exercise of Warrant
|
25
|
4.3
|
No Adjustment for Certain Transactions
|
25
|
4.4
|
Determination by Independent Firm
|
25
|
4.5
|
Proceedings Prior to any Action Requiring Adjustment
|
25
|
4.6
|
Certificate of Adjustment
|
25
|
4.7
|
Notice of Special Matters
|
26
|
4.8
|
No Action after Notice
|
26
|
4.9
|
Protection of Warrant Agent
|
26
|
4.10
|
Other Adjustments
|
27
|
4.11
|
Participation by Registered Warrantholder
|
27
|
Article 5 Rights and Covenants of the Corporation
|
27
|
|
5.1
|
Optional Purchases by the Corporation
|
27
|
5.2
|
General Covenants
|
27
|
5.3
|
Remuneration and Expenses of Warrant Agent
|
28
|
5.4
|
Performance of Covenants by Warrant Agent
|
28
|
5.5
|
Enforceability of Warrants
|
29
|
Article 6 Enforcement
|
29
|
|
6.1
|
Suits by Registered Warrantholders
|
29
|
6.2
|
Suits by the Corporation
|
30
|
6.3
|
Limitation of Liability
|
30
|
6.4
|
Waiver of Default
|
30
|
Article 7 Meetings of Registered Warrantholders
|
31
|
|
7.1
|
Right to Convene Meetings
|
31
|
7.2
|
Notice
|
31
|
7.3
|
Chair
|
31
|
7.4
|
Quorum
|
31
|
7.5
|
Power to Adjourn
|
32
|
7.6
|
Show of Hands; Other Means of Voting
|
32
|
7.7
|
Poll and Voting
|
32
|
7.8
|
Regulations
|
33
|
7.9
|
Corporation and Warrant Agent May be Represented
|
33
|
7.10
|
Powers Exercisable by Extraordinary Resolution
|
34
|
7.11
|
Meaning of Extraordinary Resolution
|
34
|
7.12
|
Powers Cumulative
|
35
|
7.13
|
Minutes
|
35
|
7.14
|
Instruments in Writing
|
35
|
7.15
|
Binding Effect of Resolutions
|
36
|
7.16
|
Holdings by Corporation Disregarded
|
36
|
Article 8 Supplemental Indentures
|
36
|
|
8.1
|
Provision for Supplemental Indentures for Certain Purposes
|
36
|
8.2
|
Successor Entities
|
37
|
Article 9 Concerning The Warrant Agent
|
37
|
|
9.1
|
Trust Indenture Legislation
|
37
|
9.2
|
Rights and Duties of Warrant Agent
|
37
|
9.3
|
Evidence, Experts and Advisers
|
38
|
9.4
|
Documents, Monies, etc. Held by Warrant Agent
|
39
|
9.5
|
Actions by Warrant Agent to Protect Interest
|
39
|
9.6
|
Warrant Agent Not Required to Give Security
|
39
|
9.7
|
Protection of Warrant Agent
|
39
|
9.8
|
Replacement of Warrant Agent; Successor by Merger
|
40
|
9.9
|
Conflict of Interest
|
41
|
9.10
|
Acceptance of Agency
|
41
|
9.11
|
Warrant Agent Not to be Appointed Receiver
|
41
|
9.12
|
Knowledge of Warrant Agent
|
41
|
9.13
|
Indemnification of Warrant Agent
|
41
|
9.14
|
Anti-Money Laundering
|
42
|
9.15
|
Warrant Agent Not Required to Give Notice of Default
|
42
|
9.16
|
Right of Warrant Agent Not to Act
|
42
|
9.17
|
Compliance with Privacy Code
|
43
|
9.18
|
U.S. Securities Matters
|
43
|
Article 10 General
|
43
|
|
10.1
|
Notice to the Corporation and the Warrant Agent
|
43
|
10.2
|
Notice to Registered Warrantholders
|
44
|
10.3
|
Evidence of Ownership
|
45
|
10.4
|
Counterparts
|
45
|
10.5
|
Satisfaction and Discharge of Indenture
|
45
|
10.6
|
Provisions of Indenture and Warrants for the Sole Benefit of Parties and Registered Warrantholders
|
46
|
10.7
|
Common Shares or Warrants Owned by the Corporation or its Subsidiaries - Certificate to be Provided
|
46
|
10.8
|
Force Majeure
|
46
|
10.9
|
Successors
|
46
|
A. |
The Corporation intends to complete a transaction pursuant to a plan of arrangement (the "Plan of Arrangement") implemented under section 193 of
the Business Corporation Act (Alberta), RSA 2000, c B-9, as approved by an order of the Court of Queen's Bench of Alberta on December 16, 2020.
|
B. |
In connection with the Arrangement (as defined herein) and pursuant to the Plan of Arrangement, the Corporation shall cause Warrants to be issued and distributed to Husky Common
Shareholders (as defined in the Plan of Arrangement).
|
C. |
Each Warrant issued pursuant to the Plan of Arrangement shall, subject to adjustment in certain circumstances, entitle the holder thereof to acquire one (1) Common Share at the price
and upon the terms and conditions herein set forth.
|
D. |
All acts and deeds necessary have been done and performed to create the Warrants, when issued as provided in this Indenture, as legal, valid and binding obligations of the Corporation
with the benefits and subject to the terms of this Indenture.
|
1.1 |
Definitions
|
|
(a) |
are declared and paid in the ordinary course of business; and
|
(b)
|
do not exceed, in the aggregate, the greater of: (i) (a) for the 2021 financial year, $170 million; and (b) for financial years
after 2021, 150% of the aggregate amount of the dividends paid by the Corporation on its Common Shares in its immediately preceding financial year which were Dividends Paid in the Ordinary Course for such preceding year; (ii) 100% of
the retained earnings of the Corporation as at the end of its immediately preceding financial year; and (iii) 100% of the aggregate consolidated net earnings of the Corporation, determined before computation of extraordinary items but
after dividends paid on all Common Shares and first preferred shares of the Corporation, for its immediately preceding financial year, in each case calculated in accordance with Canadian generally accepted accounting principles
consistent with those applied in the preparation of the most recently completed audited consolidated financial statements of the Corporation;
|
1.2
|
Gender, Number, etc.
|
1.3 |
Interpretation not Affected by Headings, etc.
|
1.4 |
Day not a Business Day
|
1.5 |
Time of the Essence
|
1.6 |
Applicable Law
|
1.7 |
Monetary References
|
1.8 |
Language
|
1.9 |
Severability
|
1.10
|
Conflicts
|
2.1 |
Creation, Issue and Terms of Warrants
|
|
(a) |
A maximum number of 66,697,799 Warrants which are to be issued pursuant to the Arrangement are hereby created and authorized to be issued in
accordance with the terms and subject to the conditions hereof. Subject to the applicable conditions for exercise set out in Article 3 having been satisfied and subject to adjustment in accordance with Article 4, each whole Warrant entitles the holder thereof, upon exercise at any time after the Issue Date and ending at the Time of Expiry, to acquire one (1) Common Share upon payment of the Exercise Price.
|
|
(b) |
No fractional Warrants shall be issued or otherwise provided for hereunder. All fractional Warrants that would otherwise be issuable shall be rounded down to the next whole number of
Warrants and no consideration will be paid in lieu of fractional Warrants.
|
|
(c) |
The number of Common Shares which may be acquired pursuant to the exercise of Warrants and the Exercise Price payable therefor shall be adjusted in the events and in the manner
specified in Article 4.
|
|
(d) |
Each Warrant shall entitle the holder thereof to such other rights and privileges as are set forth in this Indenture.
|
2.2 |
Registered Warrantholder not a Shareholder
|
2.3 |
Warrants to Rank pari passu
|
2.4 |
Form of Warrants, Certificated Warrants
|
2.5
|
Book Based Warrants
|
|
(a) |
Reregistration of beneficial interests in and transfers of Warrants held by the Depository shall be made only through the Depository’s book based registration system and no Warrant
Certificates shall be issued in respect of such Warrants except where physical certificates evidencing ownership in such securities are required or as set out herein or as may be requested by the Depository, from time to time. Except as
provided in this Section 2.5, owners of beneficial interests in any CDS Global Warrants or DTC Global Warrants shall not be entitled to have Warrants registered in their names and shall not receive or be entitled to receive Warrants in
definitive form or to have their names appear in the register referred to in Section 2.8. Notwithstanding any terms set out herein, Warrants having any legend set forth in Section 2.7 and held in the name of the Depository may only be held in
the form of Uncertificated Warrants with the prior consent of the Warrant Agent and in accordance with the Internal Procedures.
|
|
(b) |
Notwithstanding any other provision in this Indenture, no CDS Global Warrants or DTC Global Warrants may be exchanged in whole or in part for Warrants registered, and no transfer of any
CDS Global Warrants or DTC Global Warrants in whole or in part may be registered, in the name of any person other than CDS (for such CDS Global Warrants), DTC (for such DTC Global Warrants), or a nominee thereof unless:
|
|
(i) |
CDS or DTC notifies the Corporation that it is unwilling or unable to continue to act as depository in connection with the Book Based Warrants and the Corporation is unable to locate a
qualified successor;
|
|
(ii) |
the Corporation determines that CDS or DTC, as applicable, is no longer willing, able or qualified to discharge properly its responsibilities as holder of the CDS Global Warrants or the
DTC Global Warrants, as applicable, and the Corporation is unable to locate a qualified successor;
|
|
(iii) |
CDS or DTC ceases to be a clearing agency or otherwise ceases to be eligible to be a depository and the Corporation is unable to locate a qualified successor;
|
|
(iv) |
the Corporation determines that the Warrants shall no longer be held as Book Based Warrants through CDS and/or DTC;
|
|
(v) |
such right is required by Applicable Legislation, as determined by the Corporation and the Corporation's Counsel; or
|
|
(vi) |
such registration is effected in accordance with the internal procedures of the Depository and the Internal Procedures,
|
|
(c) |
Subject to the provisions of this Section 2.5, any exchange of CDS Global Warrants for Warrants which are not CDS Global Warrants and any exchange of DTC Global Warrants for Warrants
which are not DTC Global Warrants, may be made in whole or in part in accordance with the provisions of Section 2.10. All such Warrants issued in exchange for CDS Global Warrants or DTC Global Warrants or any portion thereof shall be
registered in
|
|
(d) |
Every Warrant that is Authenticated upon registration or transfer of a CDS Global Warrant, or in exchange for or in lieu of a CDS Global Warrant, whether pursuant to this Section 2.5,
or otherwise, shall be Authenticated in the form of, and shall be, a CDS Global Warrant, unless such Warrant is registered in the name of a person other than CDS for such CDS Global Warrant or a nominee thereof. Every Warrant that is
Authenticated upon registration or transfer of a DTC Global Warrant, or in exchange for or in lieu of a DTC Global Warrant, whether pursuant to this Section 2.5, or otherwise, shall be Authenticated in the form of, and shall be, a DTC Global
Warrant, unless such Warrant is registered in the name of a person other than DTC for such DTC Global Warrant or a nominee thereof.
|
|
(e) |
Notwithstanding anything to the contrary in this Indenture, subject to Applicable Legislation, the CDS Global Warrants and the DTC Global Warrants will be issued as Uncertificated
Warrants, unless otherwise requested in writing by the Depository or the Corporation.
|
|
(f) |
The rights of beneficial owners of Warrants who hold securities entitlements in respect of the Warrants through the Depository’s book based registration system shall be limited to those
established by Applicable Legislation and agreements between the Depository and the Book Based Participants and between such Book Based Participants and the beneficial owners of Warrants who hold securities entitlements in respect of the
Warrants through the Depository’s book based registration system, and such rights must be exercised through a Book Based Participant in accordance with the rules and procedures of the Depository.
|
|
(g) |
Notwithstanding anything herein to the contrary, neither the Corporation nor the Warrant Agent nor any agent thereof shall have any responsibility or liability for:
|
|
(i) |
the electronic records maintained by the Depository relating to any ownership interests or any other interests in the Warrants or the depository system maintained by the Depository, or
payments made on account of any ownership interest or any other interest of any person in any Warrant represented by an electronic position in the Depository’s book based registration system (other than the Depository or its nominee);
|
|
(ii) |
maintaining, supervising or reviewing any records of the Depository or any Book Based Participant relating to any such interest; or
|
|
(iii) |
any advice or representation made or given by the Depository or those contained herein that relate to the rules and regulations of the Depository or any action to be taken by the
Depository on its own direction or at the direction of any Book Based Participant.
|
|
(h) |
The Corporation may terminate the application of this Section 2.5 in its sole discretion in which case all Warrants shall be evidenced by Warrant Certificates registered in the name of
a person other than the Depository.
|
2.6
|
Warrant Certificates
|
|
(a) |
Each Warrant Certificate shall be Authenticated on behalf of the Warrant Agent. Each Warrant Certificate shall be signed by any one duly authorized signatory of the Corporation; whose
signature shall appear on the Warrant Certificate and may be printed, lithographed or otherwise mechanically reproduced thereon and, in such event, certificates so signed are as valid and binding upon the Corporation as if it had been signed
manually. Any Warrant Certificate which has one signature as hereinbefore provided shall be valid notwithstanding that the person whose signature is printed, lithographed or mechanically reproduced no longer holds office at the date of
issuance of such certificate. The Warrant Certificates may be engraved, printed or lithographed, or partly in one form and partly in another, as the Warrant Agent may determine.
|
|
(b) |
The Warrant Agent shall Authenticate Uncertificated Warrants (whether upon original issuance, exchange, registration of transfer, partial payment, or otherwise) by completing its
applicable Internal Procedures and the Corporation shall, and hereby acknowledges that it shall, thereupon be deemed to have duly and validly issued such Uncertificated Warrants under this Indenture. Such Authentication shall be conclusive
evidence that such Uncertificated Warrant has been duly issued hereunder and that the holder or holders are entitled to the benefits of this Indenture. The register shall be final and conclusive evidence as to all matters relating to
Uncertificated Warrants with respect to which this Indenture requires the Warrant Agent to maintain records or accounts. In case of differences between the register at any time and any other time the register at the later time shall be
controlling, absent manifest error and such Uncertificated Warrants are binding on the Corporation.
|
|
(c) |
Any Warrant Certificate validly issued in accordance with the terms of this Indenture in effect at the time of issue of such Warrant Certificate shall, subject to the terms of this
Indenture and Applicable Legislation, validly entitle the holder to acquire Common Shares, notwithstanding that the form of such Warrant Certificate may not be in the form currently required by this Indenture.
|
|
(d) |
No Warrant shall be issued and shall be valid or obligatory or shall entitle the holder thereof to the benefits of this Indenture, until it has been Authenticated by the Warrant Agent.
Authentication by the Warrant Agent, including by way of entry on the register, shall not be construed as a representation or warranty by the Warrant Agent as to the validity of this Indenture or of such Warrant Certificates or Uncertificated
Warrants (except the due Authentication thereof) or as to the performance by the Corporation of its obligations under this Indenture and the Warrant Agent shall in no respect be liable or answerable for the use made of the Warrants or any of
them or of the consideration thereof. Authentication by the Warrant Agent shall be conclusive evidence as against the Corporation that the Warrants so Authenticated have been duly issued hereunder and that the holder thereof is entitled to
the benefits of this Indenture.
|
|
(e) |
No Certificated Warrant shall be considered issued and shall not be obligatory nor shall it entitle the holder thereof to the benefits of this Indenture, until it has been Authenticated
by signature by or on behalf of the Warrant Agent. Such Authentication on any such Certificated Warrant shall be conclusive evidence that such Certificated Warrant is duly Authenticated and is valid and a binding obligation of the Corporation
and that the holder is entitled to the benefits of this Indenture.
|
|
(f) |
No Uncertificated Warrant shall be considered issued and shall not be obligatory nor shall it entitle the holder thereof to the benefits of this Indenture, until it has been
Authenticated by
|
|
(g) |
The Authentication by the Warrant Agent of any Warrants whether by way of entry on the register or otherwise shall not be construed as a representation or warranty by the Warrant Agent
as to the validity of the Indenture or such Warrants (except the due Authentication thereof) or as to the performance by the Corporation of its obligations under this Indenture and the Warrant Agent shall in no respect be liable or answerable
for the use made of the Warrants or any of them or the proceeds thereof.
|
2.7 |
Legends
|
|
(a) |
Notwithstanding anything herein contained, Common Shares will only be issued pursuant to the exercise of any Warrant in compliance with Applicable Legislation of any applicable
jurisdiction and, without limiting the generality of the foregoing, in respect of any Warrants exercised for Common Shares the certificates representing the issued Common Shares will bear such legends as may, in the opinion of Counsel to the
Corporation, be necessary in order to avoid a violation of Applicable Legislation of such jurisdiction or to comply with the requirements of any stock exchange on which the Common Shares are listed, provided that if, at any time, in the
opinion of Counsel to the Corporation, such legends are no longer necessary in order to avoid a violation of any such laws, or the holder of any such legended certificate, at the holder’s expense, provides the Corporation with evidence
satisfactory in form and substance to the Corporation (which may include an opinion of counsel satisfactory to the Corporation) to the effect that such holder is entitled to sell or otherwise transfer such Common Shares in a transaction in
which such legends are not required, such legended certificate may thereafter be surrendered to the Warrant Agent in exchange for a certificate which does not bear such legend.
|
|
(b) |
Each CDS Global Warrant originally issued in Canada and held by CDS, and each Certificated Warrant that is a CDS Global Warrant issued in exchange therefor or in substitution thereof
shall bear or be deemed to bear the following legend or such variations thereof as the Corporation may prescribe from time to time:
|
2.8
|
Register of Warrants
|
|
(a) |
The Warrant Agent shall maintain records and accounts concerning the Warrants, whether Certificated Warrants or Uncertificated Warrants, which shall contain the information called for
below with respect to each Warrant, together with such other information as may be required by Applicable Legislation or as the Warrant Agent may elect to record. All such information shall be kept in one set of accounts and records which the
Warrant Agent shall designate (in such manner as shall permit it to be so identified as such by an unaffiliated party) as the register of the holders of Warrants. The information to be entered for each account in the register of Warrants at
any time shall include:
|
|
(i) |
the name and address of the holder of the Warrants, the date of Authentication thereof and the number of Warrants;
|
|
(ii) |
whether such Warrant is a Certificated Warrant or an Uncertificated Warrant and, if a Warrant Certificate, the unique number or code assigned to and imprinted thereupon and, if an
Uncertificated Warrant, the unique number or code assigned thereto if any;
|
|
(iii) |
whether such Warrant has been cancelled; and
|
|
(iv) |
a register of transfers in which all transfers of Warrants and the date and other particulars of each transfer shall be entered.
|
|
(b) |
Once an Uncertificated Warrant has been Authenticated, the information set forth in the register with respect thereto at the time of Authentication may be altered, modified, amended,
supplemented or otherwise changed only to reflect exercise or proper instructions to the Warrant Agent from the holder as provided herein, except that the Warrant Agent may act unilaterally to make purely administrative changes internal to
the Warrant Agent and changes to correct errors. Each person who becomes a holder of an Uncertificated Warrant, by his, her or its acquisition thereof shall be deemed to have irrevocably (i) consented to the foregoing authority of the Warrant
Agent to make such minor error corrections and (ii) agreed to pay to the Warrant Agent, promptly upon written demand, the full amount of all loss and expense (including reasonable legal fees of the Corporation and the Warrant Agent plus
interest, at an appropriate then prevailing rate of interest to the Warrant Agent), sustained by the Corporation or the Warrant Agent as a proximate result of such error if but only if and only to the extent that such present or former holder
realized any benefit as a result of such error and could reasonably have prevented, forestalled or minimized such loss and expense by prompt reporting of the error or avoidance of accepting benefits thereof whether or not such error is or
should have been timely detected and corrected by the Warrant Agent; provided, that no person who is a bona fide purchaser without knowledge of such error shall have any such obligation to the Corporation or to the Warrant Agent.
|
2.9
|
Issue in Substitution for Warrant Certificates Lost, etc.
|
|
(a) |
In the event that any Warrant Certificate shall become mutilated or be lost, destroyed or stolen, the Corporation, subject to Applicable Legislation and subsection 2.9(b), shall issue
and thereupon the Warrant Agent shall Authenticate and deliver, a new Warrant Certificate of like tenor and bearing the same legend, if applicable, as the one mutilated, lost, destroyed or stolen in exchange for and in place of and upon
cancellation of such mutilated Warrant Certificate, or in lieu of and in substitution for such lost, destroyed or stolen Warrant Certificate, and the substituted Warrant Certificate shall be in a form approved by the Warrant Agent and the
Warrants evidenced thereby shall be entitled to the benefits hereof and shall rank equally in accordance with its terms with all other Warrants issued or to be issued hereunder.
|
|
(b) |
The applicant for the issue of a new Warrant Certificate pursuant to this Section 2.9 shall bear the cost of the issue thereof and in case of loss, destruction or theft shall, as a
condition precedent to the issue thereof, furnish to the Corporation and to the Warrant Agent such evidence of ownership and of the loss, destruction or theft of the Warrant Certificate so lost destroyed or stolen as shall be satisfactory to
the Corporation and to the Warrant Agent each in their sole discretion, and such applicant shall also be required to furnish an indemnity and surety bond or security in amount and form satisfactory to the Corporation and the Warrant Agent,
each in their discretion and shall pay the reasonable charges of the Corporation and the Warrant Agent in connection therewith.
|
2.10 |
Exchange of Warrant Certificates
|
|
(a) |
Warrant Certificates representing Warrants to acquire any specified number of Common Shares may, upon compliance with the reasonable requirements of the Warrant Agent, be exchanged for
another Warrant Certificate or Warrant Certificates entitling the holder thereto to acquire in the aggregate the same number of Common Shares as may be acquired under the Warrant Certificate or Warrant Certificates so exchanged. Upon
compliance with the reasonable requirements of the Warrant Agent and the terms and conditions hereof, the Corporation will Authenticate, and the Warrant Agent will countersign, all Warrant Certificates necessary to carry out these exchanges.
|
|
(b) |
Warrant Certificates may be exchanged only at the Warrant Agency or at any other place that is designated by the Corporation with the approval of the Warrant Agent. Any Warrant
Certificate tendered for exchange shall be cancelled by the Warrant Agent.
|
2.11 |
Transfer and Ownership of Warrants
|
|
(a) |
The Warrants may only be transferred on the register kept by the Warrant Agent at the Warrant Agency by the holder or its legal representatives or its attorney duly appointed by an
instrument in writing in form and execution satisfactory to the Warrant Agent only upon (i) in the case of a Warrant Certificate, surrendering to the Warrant Agent at the Warrant Agency the Warrant Certificates representing the Warrants to be
transferred together with a duly executed transfer form as set forth as part of Schedule "A" and (ii) in the case of Book Based Warrants, in accordance with procedures prescribed by the Depository under the book based registration system, and
(iii) upon compliance with:
|
|
(i) |
the conditions herein;
|
(ii)
|
such reasonable requirements as the Warrant Agent or the Corporation may prescribe; and
|
|
(iii) |
all Applicable Legislation;
|
|
(b) |
Subject to the provisions of this Indenture and Applicable Legislation, the Registered Warrantholder shall be entitled to the rights and privileges attaching to the Warrants, and the
issue of Common Shares by the Corporation upon the exercise of Warrants in accordance with the terms and conditions herein contained shall discharge all responsibilities of the Corporation and the Warrant Agent with respect to such Warrants
and neither the Corporation nor the Warrant Agent shall be bound to inquire into the title of any such holder.
|
2.12 |
Charges for Exchange and Transfer
|
2.13 |
Transferee Entitled to Registration
|
2.14 |
Cancellation of Surrendered Warrants
|
3.1 |
Right and Method of Exercise of Warrants
|
|
(a) |
Subject to the provisions hereof, each Registered Warrantholder may exercise the right conferred on such holder to subscribe for and purchase such number of Common Shares as is equal to
the Exchange Basis for each whole Warrant held after the Issue Date and prior to the Time of Expiry and in accordance with the conditions herein from the Warrant Agent at the Warrant Agency.
|
|
(b) |
Registered Warrantholders of Warrant Certificates who wish to exercise their Warrants in order to acquire Common Shares must complete the exercise form (the "Exercise Form") attached to the Warrant Certificate(s), which form is attached hereto as Schedule "B" and may be amended by the Corporation with the consent of the Warrant Agent, if such
amendment does not, in the reasonable opinion of the Corporation and the Warrant Agent, which may be based on the advice of Counsel, materially and adversely affect the rights, entitlements and interests of the Registered Warrantholders, and
deliver such certificate(s), the executed Exercise Form and a certified cheque, bank draft, wire transfer or money order in the lawful money of Canada payable to or to the order of the Corporation in an amount equal to the aggregate Exercise
Price to the Warrant Agent at the Warrant Agency. The Warrants represented by a Warrant Certificate shall be deemed to be surrendered upon personal delivery of such certificate, Exercise Form and aggregate Exercise Price or, if such documents
are sent by mail or other means of transmission, upon actual receipt thereof by the Warrant Agent at the Warrant Agency.
|
|
(c) |
A beneficial owner of Uncertificated Warrants evidenced by a security entitlement in respect of Warrants in the book based registration system who desires to exercise his or her
Warrants must do so by causing a Book Based Participant to deliver to the Depository on behalf of the entitlement holder, notice of the beneficial owner's intention to exercise Warrants in a manner acceptable to the Depository. Forthwith upon
receipt by the Depository of such notice, as well as payment for the aggregate Exercise Price, the Depository shall deliver to the Warrant Agent confirmation of its intention to exercise Warrants (a "Confirmation")
in a manner acceptable to the Warrant Agent, including by electronic means through a book based registration system, including the clearing and settlement system currently utilized by CDS or DTC and their respective participants.
|
|
(d) |
Payment representing the aggregate Exercise Price must be provided to the appropriate office of the Book Based Participant in a manner acceptable to it. A notice in form acceptable to
the Book Based Participant and payment from such beneficial holder should be provided to the Book Based Participant sufficiently in advance so as to permit the Book Based Participant to deliver notice and payment to the Depository and for the
Depository in turn to deliver notice and payment to the Warrant Agent prior to Time of Expiry. The Depository will initiate the exercise by way of the Confirmation and forward the aggregate Exercise Price electronically to the Warrant Agent
and the Warrant Agent will execute the exercise by issuing to the Depository through the book based registration system the Common Shares to which the exercising Registered Warrantholder is entitled pursuant to the exercise. Any expense
associated with the exercise process will be for the account of the entitlement holder exercising the Warrants and/or the Book Based Participant exercising the Warrants on its behalf.
|
|
(e) |
By causing a Book Based Participant to deliver notice to the Depository, a beneficial owner of Warrants shall be deemed to have irrevocably surrendered his or her Warrants so exercised
and appointed such Book Based Participant to act as his or her exclusive settlement agent with respect to the exercise and the receipt of Common Shares in connection with the obligations arising from such exercise.
|
|
(f) |
Any notice which the Depository determines to be incomplete, not in proper form or not duly executed shall for all purposes be void and of no effect and the exercise to which it relates
shall be considered for all purposes not to have been exercised thereby. A failure by a Book Based Participant to exercise or to give effect to the settlement thereof in accordance with the beneficial owner’s or the Registered Warrantholder’s
instructions will not give rise to any obligations or liability on the part of the Corporation or Warrant Agent to the Book Based Participant or the Registered Warrantholder.
|
|
(g) |
Any exercise form or the Exercise Form referred to in this Section 3.1 shall be signed by the Registered Warrantholder, or its executors or administrators or other legal representatives
or an attorney of the Registered Warrantholder, duly appointed by an instrument in writing satisfactory to the Warrant Agent but such exercise form need not be executed by the Depository.
|
|
(h) |
Any exercise referred to in this Section 3.1 shall require that the entire Exercise Price for the Common Shares to be acquired pursuant to such exercise must be paid at the time of
exercise and such Exercise Price, Certificated Warrant and original Exercise Form executed by the Registered Warrantholder or the Confirmation, as applicable, from the Depository must be received by the Warrant Agent prior to the Time of
Expiry.
|
|
(i) |
Warrants may only be exercised pursuant to this Section 3.1 by or on behalf of a Registered Warrantholder, as applicable.
|
|
(j) |
If the form of Exercise Form set forth in the Warrant Certificate shall have been amended, the Corporation shall cause the amended Exercise Form to be forwarded to all Registered
Warrantholders.
|
|
(k) |
Exercise Forms and Confirmations must be delivered to the Warrant Agent at any time during the actual business hours of the Warrant Agent on any Business Day prior to the Time of
Expiry. Any Exercise Form or Confirmations received by the Warrant Agent after business hours on any Business Day other than the Expiry Date will be deemed to have been received by the Warrant Agent on the next following Business Day. Any
Exercise Form or Confirmations received by the Warrant Agent after the Time of Expiry will be void.
|
|
(l) |
Any Warrant with respect to which an Exercise Form or a Confirmation and payment of the Exercise Price is not received by the Warrant Agent before the Time of Expiry shall be deemed to
have expired and become void and of no further force and effect and all rights with respect to such Warrants shall terminate and be cancelled.
|
3.2 |
Effect of Exercise of Warrants
|
|
(a) |
Upon compliance by the holder of any Warrant Certificate with the provisions of Section 3.1, and subject to Section 3.3 and Section 3.11, the Common Shares subscribed for shall be
deemed to have been issued as fully paid and non-assessable common shares in the capital of the Corporation and the person or persons to whom such Common Shares are to be issued shall be deemed to have become the holder or holders of record
of such Common
|
|
(b) |
Within five Business Days after the Exercise Date of a Warrant as set forth above, the Warrant Agent shall cause to be delivered to the person or persons in whose name or names the
Common Shares so subscribed for have been issued, as specified in the Exercise Form or Confirmation, as applicable completed in connection with the exercise of the Warrants, in accordance with the instructions specified in such Exercise Form
or Confirmation, as applicable or, if so specified in such Exercise Form or Confirmation, as applicable, cause to be delivered to such person or persons at the Warrant Agency where the Warrants were surrendered, a certificate or certificates
for the appropriate number of Common Shares subscribed for or any other appropriate evidence of the issuance of Common Shares to such person or persons in respect of Common Shares issued under the book entry registration system, including a
Direct Registration Advice.
|
3.3 |
Partial Exercise of Warrants; Fractions
|
|
(a) |
The holder of any Warrants may acquire a number of Common Shares less than the number which the holder is entitled to acquire pursuant to the surrendered Warrants. In the event of any
exercise of a number of Warrants less than the number which the holder is entitled to exercise, the holder of the Warrants upon exercise thereof shall, in addition, be entitled to receive without charge therefor, a new Warrant Certificate(s),
if applicable, in respect of the balance of the Warrants which such holder was entitled to exercise pursuant to the surrendered Warrants and which were not then exercised.
|
|
(b) |
Notwithstanding anything herein contained, including any adjustment provided for in Article 4, the Corporation shall not be required, upon the
exercise of any Warrants, to issue fractions of Common Shares or to distribute certificates which evidence fractional Common Shares. Warrants may only be exercised in a sufficient number to acquire whole numbers of Common Shares. Any
fractional Common Shares shall be rounded down to the nearest whole number and the holder of such Warrants shall not be entitled to any new Warrant Certificate or other compensation in respect of any fractional Common Shares which are not
issued.
|
3.4 |
Transfer Fees and Taxes
|
3.5 |
Warrant Agency
|
3.6 |
Expiration of Warrants
|
3.7 |
Cancellation of Surrendered Warrants
|
3.8 |
Accounting and Recording
|
|
(a) |
The Warrant Agent shall promptly account to the Corporation with respect to Warrants exercised, and shall promptly forward to the Corporation (or into an account or accounts of the
Corporation with the bank or trust company designated by the Corporation for that purpose), all monies received by the Warrant Agent on the subscription of Common Shares through the exercise of Warrants. Any monies, securities or other
instruments, from time to time received by the Warrant Agent pursuant to the exercise of Warrants shall be received in trust for and shall be segregated and kept apart by the Warrant Agent in trust for the Corporation.
|
|
(b) |
The Warrant Agent shall record the particulars of Warrants exercised which shall include the names and addresses of the persons who become Shareholders on exercise and the Exercise
|
3.9 |
Common Share Certificates
|
3.10 |
No Effective Registration Statement
|
3.11 |
U.S. Securities Law Matters
|
|
(a) |
In connection with any exercise of Warrants, if it is required by law, the Corporation shall cause to be delivered to any person in whose name the Common Shares issuable upon exercise
of the Warrants are to be issued a prospectus that complies with the U.S. Securities Act and that is a part of a Registration Statement. Not later than the date of this Indenture, the Corporation has filed with securities regulatory
authorities in each of the provinces and territories of Canada and the SEC a prospectus supplement to the prospectus included in its Registration Statement. The Corporation will use its best efforts to maintain a Registration Statement
effective until the earlier of the Time of Expiry or such time as no Warrants remain outstanding (provided, however, that nothing shall prevent the Corporation’s amalgamation, arrangement, merger or sale, including any take-over bid, and any
associated delisting or deregistration or ceasing to be a reporting issuer, provided that, so long as the Warrants are still outstanding and represent a right to acquire securities of the acquiring company, the acquiring company shall assume
the Corporation’s obligations under this Indenture). All expenses incidental to the Corporation’s performance of or compliance with the foregoing provisions will be borne by the Corporation, including, without limitation: (i) all registration
and filing fees and expenses; (ii) all fees and expenses of compliance with applicable U.S. Securities Laws and state securities laws; and (iii) all fees and disbursements of Counsel for the Corporation, independent professional accountants
of the Corporation and experts retained by the Corporation whose consent is required to be provided with respect to any Registration Statement.
|
|
(b) |
Notwithstanding any provision of this Indenture to the contrary, unless a Registration Statement shall be effective under the U.S. Securities Act and any prospectus supplement necessary
thereto shall have been filed with the SEC and state securities laws are preempted, any Warrants held by U.S. Warrantholders may only be exercised by persons who establish to the reasonable satisfaction of the Corporation and the Warrant
Agent (which may include providing an opinion of Counsel) that the issuance of the Common Shares pursuant to the exercise of the Warrants can be completed pursuant to and in accordance with an exemption or exclusion from the registration
requirements of the U.S. Securities Act and all applicable state securities laws.
|
|
(c) |
If any person shall fail to establish to the satisfaction of the Corporation or Warrant Agent the conditions described in subsection (b) above, the holder of the applicable Warrant
shall be notified by the Warrant Agent within two Business Days that the evidence provided has been deemed insufficient to permit the exercise of such Warrant and provide a description of the nature of such deficiency. In the case where the
Corporation is not satisfied with the provided evidence, it shall furnish to the Warrant Agent either (i) the form of proper notice to be delivered to establish the required evidence or (ii) a description of the deficiency. Until such time as
the Corporation or Warrant Agent, as the case may be, acting reasonably, is satisfied with the evidence provided, the holder of the Warrant shall not be permitted to exercise the Warrant.
|
|
(d) |
The Corporation will notify the Warrant Agent when a Registration Statement becomes effective under the U.S. Securities Act and, except in the case of a Registration Statement becoming
effective on or prior to the date of this Indenture, the Warrant Agent will notify the registered holder of Warrants as required. Thereafter, the Warrant Agent may assume that a Registration Statement remains effective until otherwise
notified in writing by the Corporation that such Registration Statement is no longer effective. The Corporation shall at all times while the Warrants are outstanding be obligated to provide prompt notice to the Warrant Agent should a
Registration Statement not be effective.
|
4.1 |
Adjustment of Number of Common Shares and Exercise Price
|
|
(a) |
If and whenever at any time during the Adjustment Period, the Corporation shall:
|
|
(i) |
subdivide, re-divide or change its outstanding Common Shares into a greater number of Common Shares,
|
|
(ii) |
reduce, combine or consolidate the outstanding Common Shares into a smaller number of Common Shares, or
|
|
(iii) |
issue Common Shares or securities exchangeable for, or convertible into, Common Shares at no additional cost to the holders of all or substantially all of the outstanding Common Shares
by way of a stock dividend or other distribution (other than the issue of Common Shares to holders of Common Shares pursuant to the exercise of the option to receive dividends in the form of Common Shares in lieu of Dividends Paid in the
Ordinary Course on the Common Shares, if applicable),
|
|
(b) |
If and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders
of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per
Common Share (or having a conversion or exchange price per Common Share) less than 95% of the Current Market Price on such record date, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the amount
determined by multiplying the Exercise Price in effect on such record date by a fraction of which the numerator shall be the total number of Common Shares outstanding on such record date plus a number of Common Shares equal to the number
arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of any convertible or exchangeable securities so offered) by such
Current Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date plus the total number of additional Common Shares offered for subscription or purchase or into which the convertible
or exchangeable securities so offered are convertible or exchangeable; any Common Shares owned by or held for the account of the Corporation or any Subsidiary shall be deemed not to be outstanding for the purpose of any such computation; such
adjustment shall be made successively whenever such a record date is fixed; to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise
Price which would then be in effect if such record date had not been fixed or, if any such rights, options or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Common Shares (or securities
convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be. Upon any adjustment or readjustment of the Exercise Price pursuant to subsection 4.1(b), the Exchange
Basis will be contemporaneously adjusted by multiplying the Exchange Basis immediately prior to such adjustment or readjustment by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment
or readjustment and the denominator shall be the Exercise Price resulting from such adjustment or readjustment. Such adjustment to the Exchange Basis will be made successively whenever such a record date is fixed.
|
|
(c) |
If and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its
outstanding Common Shares of (i) securities of any class, whether of the Corporation or any other person
|
|
(d) |
If and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation (other than as described in
subsection 4.1(a)) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as
an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity or a liquidation, dissolution or winding up of the Corporation (any of such events being hereinafter called a "Capital Reorganization"), any Registered Warrantholder who has not exercised its right of acquisition prior to the effective date of such Capital Reorganization, upon the exercise of such right thereafter,
shall be entitled to receive and shall accept, in lieu of the number of Common Shares then sought to be acquired by it, the number of shares or other securities or property of the Corporation or of the body corporate, trust, partnership or
other entity resulting from such Capital Reorganization, or of the parent entity of such resulting entity, or of such entity to which such sale or conveyance has been made, as the case may be, that such Registered Warrantholder would have
been entitled to receive on such Capital Reorganization, if, on the record date or the effective date thereof, as the case may be, the Registered Warrantholder had been the registered holder of the number of Common Shares sought to be
acquired by it and to which it was entitled to acquire upon exercise of the Warrants. If determined appropriate by the Warrant Agent relying on advice of Counsel, to give effect to or to evidence the provisions of this subsection 4.1(d), the
Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case
|
|
(e) |
In any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer,
until the occurrence of such event, issuing to the Registered Warrantholder of any Warrant exercised after such record date and before the occurrence of such event the additional Common Shares or other securities or property issuable upon
such exercise by reason of the adjustment required by such event; provided, however, that the Corporation shall deliver to such Registered Warrantholder an appropriate instrument evidencing such Registered Warrantholder's right to receive
such additional Common Shares or other securities or property upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares or other securities or property declared
in favour of holders of record of Common Shares or such other securities or property on and after the relevant date of exercise or such later date as such Registered Warrantholder would, but for the provisions of this subsection 4.1(e), have
become the holder of record of such additional Common Shares or other securities or property pursuant to subsection 4.1(b).
|
|
(f) |
Subject to the approval of the TSX or NYSE, if applicable, in any case in which subsections 4.1(a), 4.1(b) or 4.1(c) require that an adjustment be made to the Exercise Price, no such
adjustment shall be made if the Registered Warrantholders of the outstanding Warrants receive the Common Shares or securities exchangeable for or convertible into Common Shares referred to in subsection 4.1(a), the rights, options or warrants
referred to in subsection 4.1(b) or the securities, rights, options, warrants, evidences of indebtedness or assets referred to in subsection 4.1(c), as the case may be, in such kind and number as they would have received if they had been
holders of Common Shares on the applicable record date or effective date, as the case may be, by virtue of their outstanding Warrant having then been exercised into Common Shares at the Exercise Price in effect on the applicable record date
or effective date, as the case may be.
|
|
(g) |
The adjustments provided for in this Section 4.1 are cumulative and shall, in the case of adjustments to the Exercise Price, be computed to the nearest whole cent and shall apply to
successive subdivisions, re-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 4.1, provided that, notwithstanding any other provision of
this Section 4.1, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price then in effect; provided, however, that any adjustments which by reason
of this subsection 4.1(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
|
|
(h) |
After any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a
result of such adjustment and all prior adjustments pursuant to this Section 4.1, the Registered Warrantholder is entitled to receive upon the exercise of such holder's Warrant and the number of Common Shares indicated by any exercise made
pursuant to a Warrant shall be interpreted to mean the number of Common Shares or other property or securities a Registered Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this
Section 4.1, upon the full exercise of a Warrant.
|
4.2 |
Entitlement to Common Shares on Exercise of Warrant
|
4.3 |
No Adjustment for Certain Transactions
|
4.4 |
Determination by Independent Firm
|
4.5 |
Proceedings Prior to any Action Requiring Adjustment
|
4.6 |
Certificate of Adjustment
|
4.7 |
Notice of Special Matters
|
4.8 |
No Action after Notice
|
4.9 |
Protection of Warrant Agent
|
|
(a) |
shall be entitled to act and rely on any adjustment calculation of the Corporation or the Corporation's Auditors;
|
|
(b) |
shall not at any time be under any duty or responsibility to any Registered Warrantholder to determine whether any facts exist which may require any adjustment contemplated by
Section 4.1, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same;
|
|
(c) |
shall not be accountable with respect to the validity or value (or the kind or amount) of any Common Shares or of any shares or other securities or property which may at any time be
issued or delivered upon the exercise of the rights attaching to any Warrant;
|
|
(d) |
shall not be responsible for any failure of the Corporation to issue, transfer or deliver Common Shares or certificates for the same upon the surrender of any Warrants for the purpose
of the exercise of such rights or to comply with any of the covenants contained in this Article 4; and
|
|
(e) |
shall not incur any liability or responsibility whatsoever or be in any way responsible for the consequences of any breach on the part of the Corporation of any of the representations,
warranties or covenants herein contained.
|
4.10
|
Other Adjustments
|
4.11 |
Participation by Registered Warrantholder
|
5.1 |
Optional Purchases by the Corporation
|
5.2 |
General Covenants
|
|
(a) |
the Warrants, when issued and Authenticated as provided in this Indenture, will be valid and binding obligations enforceable against it in accordance with and subject to the provisions
of this Indenture;
|
|
(b) |
it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to satisfy its obligations to issue Common Shares upon the exercise of the
Warrants;
|
|
(c) |
it will cause the Common Shares and the certificates representing the Common Shares, if applicable, from time to time acquired pursuant to the exercise of the Warrants to be duly issued
and delivered in accordance with the Warrants and the terms hereof;
|
|
(d) |
all Common Shares which shall be issued upon exercise of the Warrants shall be fully paid and non-assessable common shares in the capital of the Corporation, free and clear of all
encumbrances;
|
(e)
|
it will use reasonable commercial efforts to ensure that all Warrants and Common Shares outstanding or issuable from time to time
(including the Common Shares issuable on the exercise of the Warrants) continue to be or are listed and posted for trading on the TSX and the NYSE, as applicable, provided that this subsection 5.2(e) shall not be construed as limiting or
restricting the Corporation from completing a consolidation, amalgamation, arrangement, takeover bid or merger that would result in the Warrants and Common Shares ceasing to be listed and posted for trading on the TSX or NYSE, as
applicable, so long as the holders of Warrants and Common Shares receive securities of an entity which is listed on a stock exchange, or cash, or the holders of the Common Shares have approved the transaction in accordance with the
requirements of applicable corporate and securities laws and the policies of the TSX or NYSE, as applicable;
|
|
(f) |
it will make all requisite filings under Applicable Legislation, including those necessary to remain a reporting issuer not in default in each of the provinces and other Canadian
jurisdictions where it is or becomes a reporting issuer;
|
|
(g) |
the Corporation will do, or cause to be done, all things necessary to preserve and keep in full force and effect its corporate existence, provided however that (subject to Article 4 and Section 8.2) nothing will prevent the amalgamation, arrangement, consolidation, merger or sale of, or other business combination involving, the Corporation;
|
|
(h) |
it will perform and carry out all of the acts or things to be done by it as provided in this Indenture;
|
|
(i) |
it will execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all other acts, deeds and assurances in law as the Warrant Agent may reasonably
require for the better accomplishing and effecting the intentions and provisions of this Indenture; and
|
|
(j) |
it will promptly notify the Warrant Agent and the Registered Warrantholders in writing of any default under the terms of this Warrant Indenture which remains unrectified for more than
five days following its occurrence.
|
5.3 |
Remuneration and Expenses of Warrant Agent
|
5.4 |
Performance of Covenants by Warrant Agent
|
5.5 |
Enforceability of Warrants
|
6.1 |
Suits by Registered Warrantholders
|
|
(a) |
All or any of the rights conferred upon any Registered Warrantholder by any of the terms of the Warrant Certificates or of this Indenture, or of both, may be enforced by the Registered
Warrantholder by appropriate proceedings but without prejudice to the right which is hereby conferred upon the Warrant Agent to proceed in its own name to enforce each and all of the provisions herein contained for the benefit of the
Registered Warrantholders.
|
|
(b) |
All rights of action under this Indenture may be enforced by the Warrant Agent without the possession of any of the Warrants or the production thereof on any trial or other proceedings
relative thereto.
|
|
(c) |
The Warrant Agent shall be entitled and empowered, either in its own name or as Warrant Agent of an express trust, or as attorney-in-fact for the Registered Warrantholders, or in any
one or more of such capacities, to file such proof of debt, amendment of proof of debt, claim, petition or other document as may be necessary or advisable in order to have the claim of the Warrant Agent and the Registered Warrantholders
allowed in any insolvency, bankruptcy, liquidation or other judicial proceedings relative to the Corporation or its creditors or relative to or affecting its property. The Warrant Agent is hereby irrevocably appointed (and the successive
respective Registered Warrantholders by taking and holding the same shall be conclusively deemed to have so appointed the Warrant Agent) the true and lawful attorney-in-fact of the respective Registered Warrantholders or on behalf of the
Registered Warrantholders as a class, subject to deduction from any such claims of the amounts of any claims filed by any of the Registered Warrantholders themselves if and to the extent permitted hereunder, for any proof of debt, amendment
of proof of debt, claim, petition or other document in any such proceedings and to receive payment of any sums becoming distributable on account thereof, and to execute any such other papers and documents and to do and perform any and all
such acts and things for and on behalf of the Registered Warrantholders, as may be necessary or advisable in the opinion of the Warrant Agent, in order to have the respective claims of the Warrant Agent and of the Registered Warrantholders
against the Corporation or its property allowed in any such proceeding, and to receive payment of or on account of such claims; provided, however, that nothing contained in this Indenture shall be deemed to give the Warrant Agent, unless so
authorized by extraordinary resolution (as provided in Section 7.11), any right to accept or consent to
|
|
(d) |
The Warrant Agent shall also have the power, but not the obligation, at any time and from time to time to institute and to maintain such suits and proceedings as it may be advised shall
be necessary or advisable to preserve and protect its interests and the interests of the Registered Warrantholders.
|
|
(e) |
Any such suit or proceeding instituted by the Warrant Agent may be brought in the name of the Warrant Agent as Warrant Agent of an express trust, and any recovery of judgment shall be
for the rateable benefit of the Registered Warrantholders subject to provisions of this Indenture. In any proceeding brought by the Warrant Agent (and also any proceeding in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture, to which the Warrant Agent shall be a party), the Warrant Agent shall be held to represent all the Registered Warrantholders, and it shall not be necessary to make any
Registered Warrantholders parties to any such proceeding.
|
6.2 |
Suits by the Corporation
|
6.3 |
Limitation of Liability
|
6.4 |
Waiver of Default
|
|
(a) |
the Registered Warrantholders of not less than 51% of the Warrants then outstanding shall have power (in addition to the powers exercisable by extraordinary resolution as provided in
Section 7.10) by requisition in writing to instruct the Warrant Agent to waive, either unconditionally or upon any conditions specified, any default under this Indenture or the Warrant Certificates and the Warrant Agent shall thereupon waive
the default upon such terms and conditions as shall be prescribed in such requisition; or
|
|
(b) |
the Warrant Agent shall have power to waive any default hereunder upon such terms and conditions as the Warrant Agent may deem advisable, if, in the opinion of the Warrant Agent, based
on the advice of Counsel, the same shall have been cured or adequate provision made therefor;
|
7.1 |
Right to Convene Meetings
|
7.2 |
Notice
|
7.3 |
Chair
|
7.4 |
Quorum
|
7.5 |
Power to Adjourn
|
7.6 |
Show of Hands; Other Means of Voting
|
7.7 |
Poll and Voting
|
|
(a) |
On every extraordinary resolution, and on any other question submitted to a meeting and after a vote by show of hands, or by other means in accordance with Section 7.6, when demanded by
the chair or by one or more of the Registered Warrantholders acting in person or by proxy and holding at least 5% of the aggregate number of Warrants then outstanding, a poll shall be taken in such manner as the chair shall direct. Questions
other than those required to be determined by extraordinary resolution shall be decided by a majority of the votes cast on the poll.
|
|
(b) |
On a show of hands, or by other means in accordance with Section 7.6, every person who is present and entitled to vote, whether as a Registered Warrantholder or as proxy for one or more
absent Registered Warrantholders, or both, shall have one vote. On a poll, each Registered Warrantholder present in person or represented by a proxy duly appointed by instrument in writing shall be entitled to one vote in respect of each
Warrant then held or represented by it. A proxy need not be a Registered Warrantholder. The chair of any meeting shall be entitled, both on a show of hands, or by other means in accordance with Section 7.6 and on a poll, to vote in respect of
the Warrants, if any, held or represented by the chair of such meeting.
|
7.8
|
Regulations
|
|
(a) |
the setting of the record date for a meeting for the purpose of determining Registered Warrantholders entitled to receive notice of and to vote at the meeting;
|
|
(b) |
the means by which a meeting may be convened or held (including by telephonic or other electronic means) and/or the means in which voting may be conducted at a meeting of Registered
Warrantholders;
|
|
(c) |
for Registered Warrantholders to appoint a proxy or proxies to represent them and vote for them at any such meeting (and any adjournment thereof) and the manner in which same is to be
executed, and for the production of the authority of any persons signing on behalf of the Registered Warrantholder appointing them;
|
|
(d) |
the deposit of instruments appointing proxies at such place and time as the Warrant Agent, the Corporation or the Registered Warrantholders convening the meeting, as the case may be,
may in the notice convening the meeting direct;
|
|
(e) |
the deposit of instruments appointing proxies at some approved place or places other than the place at which the meeting is to be held and enabling particulars of such instruments
appointing proxies to be mailed or sent by facsimile or other electronic format before the meeting to the Corporation or to the Warrant Agent at the place where the same is to be held and for the voting of proxies so deposited as though the
instruments themselves were produced at the meeting;
|
|
(f) |
the form of the instrument of proxy or the manner in which it must be executed; and
|
|
(g) |
generally for the calling of meetings of Registered Warrantholders and the conduct of business thereat.
|
7.9 |
Corporation and Warrant Agent May be Represented
|
7.10
|
Powers Exercisable by Extraordinary Resolution
|
|
(a) |
to agree to any modification, abrogation, alteration, compromise or arrangement of the rights of Registered Warrantholders or, subject to the consent of the Warrant Agent, the Warrant
Agent in its capacity as Warrant Agent hereunder or on behalf of the Registered Warrantholders, in each case which may be agreed to by the Corporation, whether such rights arise under this Indenture or the Warrant Certificates or otherwise;
|
|
(b) |
to amend, alter or repeal any extraordinary resolution previously passed or sanctioned by the Registered Warrantholders;
|
|
(c) |
to direct or to authorize the Warrant Agent to enforce any of the covenants on the part of the Corporation contained in this Indenture or the Warrant Certificates or to enforce any of
the rights of the Registered Warrantholders in any manner specified in such extraordinary resolution or to refrain from enforcing any such covenant or right;
|
|
(d) |
to waive, and to direct the Warrant Agent to waive, any default on the part of the Corporation in complying with any provisions of this Indenture or the Warrant Certificates either
unconditionally or upon any conditions specified in such extraordinary resolution;
|
|
(e) |
to restrain any Registered Warrantholder from taking or instituting any suit, action or proceeding against the Corporation for the enforcement of any of the covenants on the part of the
Corporation in this Indenture or the Warrant Certificates or to enforce any of the rights of the Registered Warrantholders;
|
|
(f) |
to direct any Registered Warrantholder who, as such, has brought any suit, action or proceeding to stay or to discontinue or otherwise to deal with the same upon payment of the costs,
charges and expenses reasonably and properly incurred by such Registered Warrantholder in connection therewith;
|
|
(g) |
to assent to any change in or omission from the provisions contained in the Warrant Certificates or this Indenture or any ancillary or supplemental instrument which may be agreed to by
the Corporation, and to authorize the Warrant Agent to concur in and execute any ancillary or supplemental indenture embodying the change or omission;
|
|
(h) |
with the consent of the Corporation, such consent not to be unreasonably withheld, to remove the Warrant Agent or its successor in office and to appoint a new warrant agent to take the
place of the Warrant Agent so removed; and
|
|
(i) |
to assent to any compromise or arrangement with any creditor or creditors or any class or classes of creditors, whether secured or otherwise, and with holders of any shares or other
securities of the Corporation.
|
7.11 |
Meaning of Extraordinary Resolution
|
|
(a) |
The expression "extraordinary resolution" when used in this Indenture means, subject as hereinafter provided in this Section 7.11 and in
Section 7.14, a resolution proposed at a meeting of Registered Warrantholders duly convened for that purpose and held in
|
|
(b) |
If, at the meeting at which an extraordinary resolution is to be considered, Registered Warrantholders holding at least 25% of the aggregate number of Warrants then outstanding are not
present in person or by proxy within 30 minutes after the time appointed for the meeting, then the meeting, if convened by Registered Warrantholders or on a Warrantholders' Request, shall be dissolved; but in any other case it shall stand
adjourned to such day, being not less than 15 or more than 60 days later, and to such place and time as may be appointed by the chairman. Not less than 10 days' prior notice shall be given of the time and place of such adjourned meeting in
the manner provided for in Section 10.2. Such notice shall state that at the adjourned meeting the Registered Warrantholders present in person or by proxy shall form a quorum but it shall not be necessary to set forth the purposes for which
the meeting was originally called or any other particulars. At the adjourned meeting, the Registered Warrantholders present in person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened
and a resolution proposed at such adjourned meeting and passed by the requisite vote as provided in subsection 7.11(a) shall be an extraordinary resolution within the meaning of this Indenture notwithstanding that Registered Warrantholders
representing at least 25% of the aggregate number of Warrants then outstanding are not present in person or by proxy at such adjourned meeting.
|
|
(c) |
Votes on an extraordinary resolution shall always be given on a poll and no demand for a poll on an extraordinary resolution shall be necessary.
|
7.12 |
Powers Cumulative
|
7.13 |
Minutes
|
7.14 |
Instruments in Writing
|
7.15 |
Binding Effect of Resolutions
|
7.16 |
Holdings by Corporation Disregarded
|
8.1 |
Provision for Supplemental Indentures for Certain Purposes
|
|
(a) |
setting forth any adjustments resulting from the application of the provisions of Article 4;
|
|
(b) |
adding to the provisions hereof such additional covenants and enforcement provisions as, in the opinion of Counsel, are necessary or advisable in the premises, provided that the same
are not in the opinion of the Warrant Agent relying on the advice of Counsel, prejudicial to the interests of the Registered Warrantholders;
|
|
(c) |
giving effect to any extraordinary resolution passed as provided in Article 7;
|
|
(d) |
making such provisions not inconsistent with this Indenture as may be necessary or desirable with respect to matters or questions arising hereunder or for the purpose of obtaining or
maintaining a listing or quotation of the Warrants on any stock exchange, provided that such provisions are not, in the opinion of the Warrant Agent relying on the advice of Counsel, prejudicial to the interests of the Registered
Warrantholders;
|
|
(e) |
adding to or altering the provisions hereof in respect of the transfer of Warrants, making provision for the exchange of Warrants, and making any modification in the form of the Warrant
Certificates which does not affect the substance thereof;
|
|
(f) |
modifying any of the provisions of this Indenture, including relieving the Corporation from any of the obligations, conditions or restrictions herein contained, provided that such
|
|
(g) |
modifying any of the provisions of this Indenture as may be necessary (or, to the extent such modifications are not, in the opinion of the Warrant Agent relying on the advice of
Counsel, prejudicial to the interests of the Registered Warrantholders, desirable) to comply with the provisions of any regulatory or taxing legislation applicable to the Corporation;
|
|
(h) |
providing for the issuance of additional Warrants hereunder, including Warrants in excess of the number set out in Article 2 and any consequential
amendments hereto as may be required by the Warrant Agent relying on the advice of Counsel; and
|
|
(i) |
for any other purpose not inconsistent with the terms of this Indenture, including the correction or rectification of any ambiguities, defective or inconsistent provisions, errors,
mistakes or omissions herein, provided that in the opinion of the Warrant Agent relying on the advice of Counsel the rights of the Warrant Agent and of the Registered Warrantholders are in no way prejudiced thereby.
|
8.2 |
Successor Entities
|
9.1 |
Trust Indenture Legislation
|
|
(a) |
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with a mandatory requirement of Applicable Legislation, such mandatory requirement shall
prevail.
|
|
(b) |
The Corporation and the Warrant Agent agree that each will, at all times in relation to this Indenture and any action to be taken hereunder, observe and comply with and be entitled to
the benefits of Applicable Legislation.
|
9.2 |
Rights and Duties of Warrant Agent
|
|
(a) |
In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Warrant Agent shall exercise that degree of care, diligence and skill that a
reasonably
|
|
(b) |
The obligation of the Warrant Agent to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Warrant Agent or the Registered Warrantholders
hereunder shall be conditional upon the Registered Warrantholders furnishing, when required by notice by the Warrant Agent, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to
the Warrant Agent to protect and to hold harmless the Warrant Agent and its officers, directors, employees and agents against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by
reason thereof. None of the provisions contained in this Indenture shall require the Warrant Agent to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any
of its rights or powers unless indemnified and funded as aforesaid.
|
|
(c) |
The Warrant Agent may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Registered Warrantholders, at whose instance it is
acting, to deposit with the Warrant Agent the Warrants held by them, for which Warrants the Warrant Agent shall issue receipts.
|
9.3 |
Evidence, Experts and Advisers
|
|
(a) |
In addition to the reports, certificates, opinions and other evidence required by this Indenture, the Corporation shall furnish to the Warrant Agent such additional evidence of
compliance with any provision hereof, and in such form, as may be prescribed by Applicable Legislation or as the Warrant Agent may reasonably require by written notice to the Corporation.
|
|
(b) |
In the exercise of its rights and duties hereunder, the Warrant Agent may, if it is acting in good faith, rely as to the truth of the statements and the accuracy of the opinions
expressed in statutory declarations, opinions, reports, written requests, consents, or orders of the Corporation, certificates of the Corporation or other evidence furnished to the Warrant Agent pursuant to a request of the Warrant Agent,
provided that such evidence complies with Applicable Legislation and that the Warrant Agent complies with Applicable Legislation and that the Warrant Agent examines the same and determines that such evidence complies with the applicable
requirements of this Indenture.
|
|
(c) |
Whenever it is provided in this Indenture or under Applicable Legislation that the Corporation shall deposit with the Warrant Agent resolutions, certificates, reports, opinions,
requests, orders or other documents, it is intended that the trust, accuracy and good faith on the effective date thereof and the facts and opinions stated in all such documents so deposited shall, in each and every such case, be conditions
precedent to the right of the Corporation to have the Warrant Agent take the action to be based thereon.
|
|
(d) |
Proof of the execution of an instrument in writing by any Registered Warrantholder, if required by the Warrant Agent, may be made by the certificate of a notary public or other officer
with similar powers, that the person signing such instrument acknowledged to it the execution thereof, or by an affidavit of a witness to such execution or in any other manner which the Warrant Agent may consider adequate.
|
|
(e) |
The Warrant Agent may employ or retain at the Corporation's expense such Counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the
|
|
(f) |
The Warrant Agent may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of or information obtained from any Counsel, accountant,
appraiser, engineer or other expert or adviser, whether retained or employed by the Corporation or by the Warrant Agent, in relation to any matter arising in the administration of the agency hereof.
|
9.4 |
Documents, Monies, etc. Held by Warrant Agent
|
9.5 |
Actions by Warrant Agent to Protect Interest
|
9.6 |
Warrant Agent Not Required to Give Security
|
9.7 |
Protection of Warrant Agent
|
|
(a) |
the Warrant Agent shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Warrant Certificates (except the representation contained in
Section 9.9 or in the Authentication of the Warrant Agent on the Warrant Certificates) or be required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Corporation;
|
|
(b) |
nothing herein contained shall impose any obligation on the Warrant Agent to see to or to require evidence of the registration or filing (or renewal
thereof) of this Indenture or any instrument ancillary or supplemental hereto;
|
|
(c) |
the Warrant Agent shall not be bound to give notice to any person or persons of the execution hereof; and
|
|
(d) |
the Warrant Agent shall not incur any liability or responsibility whatsoever or be in any way responsible for the consequence of any breach on the part of the Corporation of any of its
covenants herein contained or of any acts of any directors, officers, employees, agents or servants of the Corporation.
|
9.8 |
Replacement of Warrant Agent; Successor by Merger
|
|
(a) |
The Warrant Agent may resign its agency and be discharged from all further duties and liabilities hereunder, subject to this Section 9.8, by giving to the Corporation not less than 90
days' prior notice in writing or such shorter prior notice as the Corporation may accept as sufficient. The Registered Warrantholders by extraordinary resolution shall have power at any time to remove the existing Warrant Agent and to appoint
a new Warrant Agent. In the event of the Warrant Agent resigning or being removed as aforesaid or being dissolved, becoming bankrupt, going into liquidation or otherwise becoming incapable of acting hereunder, the Corporation shall forthwith
appoint a new Warrant Agent unless a new Warrant Agent has already been appointed by the Registered Warrantholders; failing such appointment by the Corporation, the retiring Warrant Agent, at the Corporation's expense, or any Registered
Warrantholder may apply to a justice of the Court of Queen's Bench of the Province of Alberta on such notice as such justice may direct, for the appointment of a new Warrant Agent; but any new Warrant Agent so appointed by the Corporation or
by the Court shall be subject to removal as aforesaid by the Registered Warrantholders. Any new Warrant Agent appointed under any provision of this Section 9.8 shall be an entity authorized to carry on the business of a trust company in the
Province of Alberta and, if required by Applicable Legislation for any other provinces, in such other provinces. On any such appointment the new Warrant Agent shall be vested with the same powers, rights, duties and responsibilities as if it
had been originally named herein as Warrant Agent hereunder and there shall be immediately executed, at the expense of the Corporation, all such conveyances or other instruments as may, in the reasonable opinion of Counsel, be necessary or
advisable to vest the new Warrant Agent with such powers, rights, duties and responsibilities, provided that the predecessor Warrant Agent shall have no obligation to execute any such conveyances or instruments until such time as it has
received payment of all outstanding remuneration and expenses payable by the Corporation to such Warrant Agent under this Indenture.
|
|
(b) |
Upon the appointment of a successor Warrant Agent, the Corporation shall promptly notify the Registered Warrantholders thereof in the manner provided for in Section 10.2.
|
|
(c) |
Any corporation into or with which the Warrant Agent may be merged or consolidated or amalgamated, or any corporation resulting therefrom to which the Warrant Agent shall be a party, or
any corporation succeeding to the trust business of the Warrant Agent shall be the successor to the Warrant Agent hereunder without any further act on its part or any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Warrant Agent under subsection 9.8(a).
|
|
(d) |
Any Warrant Certificates Authenticated but not delivered by a predecessor Warrant Agent may be Authenticated by the successor Warrant Agent in the name of the predecessor or successor
Warrant Agent.
|
9.9 |
Conflict of Interest
|
|
(a) |
The Warrant Agent represents to the Corporation that at the time of execution and delivery hereof and to the best of its knowledge, no material conflict of interest exists between its
role hereunder and its role in any other capacity and agrees that in the event of a material conflict of interest arising hereafter it will, within 90 days after ascertaining that it has such material conflict of interest, either eliminate
the same or assign its agency hereunder to a successor agent approved by the Corporation and meeting the requirements set forth in subsection 9.8(a). Notwithstanding the foregoing provisions of this subsection 9.9(a), if any such material
conflict of interest exists or hereafter shall exist, the validity and enforceability of this Indenture and the Warrant Certificates shall not be affected in any manner whatsoever by reason thereof.
|
|
(b) |
Subject to subsection 9.9(a), the Warrant Agent, in its personal or any other capacity, may buy, lend upon and deal in securities of the Corporation and generally may contract and enter
into financial transactions with the Corporation or any Subsidiary of the Corporation without being liable to account for any profit made thereby.
|
9.10 |
Acceptance of Agency
|
9.11 |
Warrant Agent Not to be Appointed Receiver
|
9.12 |
Knowledge of Warrant Agent
|
9.13 |
Indemnification of Warrant Agent
|
|
(a) |
The Corporation hereby indemnifies and agrees to hold harmless the Warrant Agent, its affiliates, their officers, directors, employees, agents, successors and assigns (the "Indemnified Parties") from and against any and all liabilities whatsoever, losses, damages, penalties, claims, demands, actions, suits, proceedings, costs, charges, assessments, judgments, expenses and
disbursements, including reasonable and documented legal fees and disbursements of whatever kind and nature which may at any time be imposed on or incurred by or asserted against the Indemnified Parties, or any of them, whether at law or in
equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of the Indemnified Parties’ duties, or
any other services that Warrant Agent may provide in connection with or in any way relating to this Indenture. The Corporation
|
|
(b) |
Notwithstanding the foregoing or any other provision of this Indenture, any liability of the Warrant Agent shall be limited, in the aggregate, to the amount of annual retainer fees paid
by the Corporation to the Warrant Agent under this Indenture in the twelve (12) months immediately prior to the Warrant Agent receiving the first notice of the claim. Notwithstanding any other provision of this Indenture, and whether such
losses or damages are foreseeable or unforeseeable, the Warrant Agent shall not be liable under any circumstances whatsoever for any (i) Applicable Legislation (ii) lost profits or (iii) special, indirect, incidental, consequential,
exemplary, aggravated or punitive losses or damages.
|
9.14 |
Anti-Money Laundering
|
9.15 |
Warrant Agent Not Required to Give Notice of Default
|
9.16 |
Right of Warrant Agent Not to Act
|
9.17
|
Compliance with Privacy Code
|
9.18 |
U.S. Securities Matters
|
10.1 |
Notice to the Corporation and the Warrant Agent
|
|
(a) |
Unless herein otherwise expressly provided, any notice to be given hereunder to the Corporation or the Warrant Agent shall be deemed to be validly given if delivered or if sent by
registered letter, postage prepaid, email or by facsimile:
|
|
(b) |
The Corporation or the Warrant Agent, as the case may be, may from time to time notify the other in the manner provided in subsection 10.1(a) of a change of address which, from the
effective date of such notice and until changed by like notice, shall be the address of the Corporation or the Warrant Agent, as the case may be, for all purposes of this Indenture.
|
|
(c) |
If, by reason of a strike, lockout or other work stoppage, actual or threatened, involving postal employees, any notice to be given to the Warrant Agent or to the Corporation hereunder
could reasonably be considered unlikely to reach its destination, such notice shall be valid and effective only if it is delivered to the named officer of the party to which it is addressed or, if it is delivered to such party at the
appropriate address provided in subsection 10.1(a), by facsimile or other means of prepaid, transmitted and recorded communication.
|
10.2 |
Notice to Registered Warrantholders
|
|
(a) |
Unless otherwise provided herein, any notice to the Registered Warrantholders under the provisions of this Indenture shall be valid and effective if delivered or sent by ordinary
prepaid post addressed to such holders at their postal addresses appearing on the register of Registered Warrantholders maintained under this Indenture. Any such notice delivered in accordance with the foregoing is deemed to have been
effectively given (and received by the Registered Warrantholders) on the date of delivery (with receipt confirmed) if such date is a Business Day or, if mailed, five Business Days following actual posting of the notice.
|
|
(b) |
If, by reason of a strike, lockout or other work stoppage, actual or threatened, involving postal employees, any notice to be given to the Registered Warrantholders hereunder could
reasonably be considered unlikely to reach its destination, such notice shall be valid and
|
|
(c) |
In addition to the other requirements for notice under this Section 10.2, where a meeting of Registered Warrantholders is being convened, the Warrant Agent or Corporation may require
publication of such notice in such municipalities and filing with securities regulatory authorities, as necessary to comply with applicable legal, regulatory or stock exchange requirements.
|
10.3 |
Evidence of Ownership
|
|
(a) |
Upon receipt of a certificate of any bank, trust company or other depositary satisfactory to the Warrant Agent stating that the Warrants specified therein have been deposited by a named
person with such bank, trust company or other depositary and will remain so deposited until the expiry of the period specified therein and the acknowledgement by the named person of such certificate, the Corporation and the Warrant Agent may
treat the person so named as the owner, and such certificate as sufficient evidence of the ownership by such person of such Warrant during such period, for the purpose of any requisition, direction, consent, instrument or other document to be
made, signed or given by the holder of the Warrant so deposited.
|
|
(b) |
The Corporation and the Warrant Agent may accept as sufficient evidence of the fact and date of the signing of any requisition, direction, consent, instrument or other document by any
person: (i) the signature of any officer of any bank, trust company, or other depositary satisfactory to the Warrant Agent as witness of such execution; (ii) the certificate of any notary public or other officer authorized to take
acknowledgments of deeds to be recorded at the place where such certificate is made that the person signing acknowledged to him the execution thereof; or (iii) a satisfactory declaration of a witness of such execution.
|
10.4 |
Counterparts
|
10.5 |
Satisfaction and Discharge of Indenture
|
|
(a) |
the date by which there shall have been delivered to the Warrant Agent for exercise or cancellation all Warrants theretofore Authenticated hereunder, in the case of Certificated
Warrants (or such other instructions, in a form satisfactory to the Warrant Agent), in the case of Uncertificated Warrants, or by way of standard processing through the book based only system in the case of a CDS Global Warrant or a DTC
Global Warrant; or
|
|
(b) |
the Time of Expiry;
|
10.6 |
Provisions of Indenture and Warrants for the Sole Benefit of Parties and Registered Warrantholders
|
10.7 |
Common Shares or Warrants Owned by the Corporation or its Subsidiaries - Certificate to be Provided
|
|
(a) |
the names (other than the name of the Corporation) of the Registered Warrantholders which, to the knowledge of the Corporation, are owned by or held for the account of the Corporation
or any Subsidiary of the Corporation; and
|
|
(b) |
the number of Warrants owned legally or beneficially by the Corporation or any Subsidiary of the Corporation,
|
10.8 |
Force Majeure
|
10.9 |
Successors
|
CENOVUS ENERGY INC.
|
COMPUTERSHARE TRUST COMPANY OF CANADA
|
|||||
Per:
|
(signed) "Alex J. Pourbaix"
|
Per:
|
(signed) "Wande Oshile"
|
|||
Name:
|
Alex J. Pourbaix
|
Name: Wande Oshile
|
||||
Title:
|
President & Chief Executive Officer
|
Title: Corporate Trust Officer
|
||||
Per:
|
(signed) "Gary F. Molnar"
|
Per:
|
(signed) "Beatriz Fedozzi"
|
|||
Name:
|
Gary F. Molnar
|
Name: Beatriz Fedozzi
|
||||
Title:
|
Vice-President, Legal, Assistant General Counsel & Corporate Secretary
|
Title: Corporate Trust Officer
|
Warrant
Certificate No. [●] |
Certificate for __________________________________________________
Warrants, each entitling the holder to acquire one (1) Common Share (subject to adjustment as provided for in the Warrant Indenture (as defined
below)
CUSIP 15135U117
ISIN CA15135U1176
|
THIS IS TO CERTIFY THAT, for value received,
|
|
CENOVUS ENERGY INC.
|
|||
By:
|
|||
Authorized Signatory
|
Countersigned and Registered by:
|
|
COMPUTERSHARE TRUST COMPANY OF CANADA
|
|
By:
|
|
Authorized Signatory
|
|
By:
|
|
Authorized Signatory
|
SPACE FOR GUARANTEES OF SIGNATURES (BELOW)
|
)
)
|
|
|
Signature of Transferor | |||
Guarantor’s Signature/Stamp |
)
)
|
Name of Transferor
|
|
• |
Canada and the USA: A Medallion Signature Guarantee obtained from a member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP,
NYSE, MSP). Many commercial banks, savings banks, credit unions, and all broker dealers participate in a Medallion Signature Guarantee Program. The Guarantor must affix a stamp bearing the actual words "Medallion Guaranteed", with the
correct prefix covering the face value of the certificate.
|
|
• |
Canada: A Signature Guarantee obtained from an authorized officer of the Royal Bank of Canada, Scotia Bank or TD Canada Trust. The Guarantor
must affix a stamp bearing the actual words "Signature Guaranteed", sign and print their full name and alpha numeric signing number. Signature Guarantees are not accepted from Treasury Branches, Credit Unions or Caisse Populaires unless they
are members of a Medallion Signature Guarantee Program. For corporate holders, corporate signing resolutions, including certificate of incumbency, are also required to accompany the transfer, unless there is a "Signature & Authority to
Sign Guarantee" Stamp affixed to the transfer (as opposed to a "Signature Guaranteed" Stamp) obtained from an authorized officer of the Royal Bank of Canada, Scotia Bank or TD Canada Trust or a Medallion Signature Guarantee with the correct
prefix covering the face value of the certificate.
|
|
• |
Outside North America: For holders located outside North America, present the certificates(s) and/or document(s) that require a guarantee to a
local financial institution that has a corresponding Canadian or American affiliate which is a member of an acceptable Medallion Signature Guarantee Program. The corresponding affiliate will arrange for the signature to be over-guaranteed.
|
TO:
|
Cenovus Energy Inc.
|
AND TO:
|
Computershare Trust Company of Canada
|
Name(s) in Full and Social Insurance Number(s) (if applicable)
|
Address(es)
|
Number of Common Shares
|
||
)
|
||||
)
|
||||
Witness
|
)
|
(Signature of Warrantholder, to be the same as
appears on the face of this Warrant Certificate)
|
||
)
|
||||
)
|
||||
Name of Registered Warrantholder
|
ARTICLE 1 INTERPRETATION
|
1
|
|
1.1
|
Certain Definitions
|
1
|
1.2
|
Currency
|
14
|
1.3
|
Headings
|
14
|
1.4
|
Calculation of Number and Percentage of Beneficial Ownership of Outstanding Voting Shares
|
15
|
1.5
|
Acting Jointly or in Concert
|
15
|
1.6
|
Generally Accepted Accounting Principles
|
15
|
ARTICLE 2 THE RIGHTS
|
15
|
|
2.1
|
Legend on Common Share Certificates
|
15
|
2.2
|
Initial Exercise Price; Exercise of Rights; Detachment of Rights
|
16
|
2.3
|
Adjustments to Exercise Price; Number of Rights
|
19
|
2.4
|
Date on Which Exercise is Effective
|
24
|
2.5
|
Execution, Authentication, Delivery and Dating of Rights Certificates
|
24
|
2.6
|
Registration, Transfer and Exchange
|
25
|
2.7
|
Mutilated, Destroyed, Lost and Stolen Rights Certificates
|
25
|
2.8
|
Persons Deemed Owners of Rights
|
26
|
2.9
|
Delivery and Cancellation of Certificates
|
26
|
2.10
|
Agreement of Rights Holders
|
27
|
2.11
|
Rights Certificate Holder Not Deemed a Shareholder
|
28
|
ARTICLE 3 ADJUSTMENTS TO THE RIGHTS
|
28
|
|
3.1
|
Flip-in Event
|
28
|
ARTICLE 4 THE RIGHTS AGENT
|
29
|
|
4.1
|
General
|
29
|
4.2
|
Merger, Amalgamation or Consolidation or Change of Name of Rights Agent
|
30
|
4.3
|
Duties of Rights Agent
|
31
|
4.4
|
Change of Rights Agent
|
32
|
4.5
|
Compliance with Money Laundering Legislation
|
33
|
ARTICLE 5 MISCELLANEOUS
|
33
|
|
5.1
|
Redemption and Waiver
|
33
|
5.2
|
Expiration
|
35
|
5.3
|
Issuance of New Rights Certificates
|
35
|
5.4
|
Supplements and Amendments
|
35
|
5.5
|
Fractional Rights and Fractional Shares
|
36
|
5.6
|
Rights of Action
|
37
|
5.7
|
Regulatory Approvals
|
37
|
5.8
|
Declaration as to Non-Canadian or Non-U.S. Holders
|
37
|
5.9
|
Notices
|
37
|
5.10
|
Costs of Enforcement
|
38
|
5.11
|
Successors
|
39
|
5.12
|
Benefits of this Agreement
|
39
|
5.13
|
Governing Law
|
39
|
5.14
|
Severability
|
39
|
5.15
|
Coming Into Effect
|
39
|
5.16
|
Reconfirmation
|
39
|
5.17
|
Determinations and Actions by the Board of Directors
|
39
|
5.18
|
Time of the Essence
|
40
|
5.19
|
Execution in Counterparts
|
40
|
ATTACHMENT 1
|
42
|
|
FORM OF ASSIGNMENT
|
45
|
|
CERTIFICATE
|
45
|
|
FORM OF ELECTION TO EXERCISE
|
46
|
|
CERTIFICATE
|
47
|
|
NOTICE
|
47
|
1.1 |
Certain Definitions
|
|
(a) |
“Acquiring Person” means any Person who is the Beneficial Owner of 20% or more of the outstanding Voting Shares provided, however, that the term “Acquiring
Person” shall not include:
|
|
(i) |
the Corporation or any Subsidiary of the Corporation;
|
|
(ii) |
any Person who becomes the Beneficial Owner of 20% or more of the outstanding Voting Shares as a result of one or any combination of (A) a Voting Share Reduction, (B) Permitted Bid Acquisitions, (C) an Exempt
Acquisition or (D) Pro Rata Acquisitions; provided, however, that if a Person becomes the Beneficial Owner of 20% or more of the outstanding Voting Shares by reason of one or any combination of the operation of Paragraphs (A), (B), (C) or (D)
above and such Person's Beneficial Ownership of Voting Shares thereafter increases by more than 1.0% of the number of Voting Shares outstanding (other than pursuant to one or any combination of a Voting Share Reduction, a Permitted Bid
Acquisition, an Exempt Acquisition or a Pro Rata Acquisition), then as of the date such Person becomes the Beneficial Owner of such additional Voting Shares, such Person shall become an “Acquiring Person”;
|
|
(iii) |
for a period of ten days after the Disqualification Date (as defined below), any Person who becomes the Beneficial Owner of 20% or more of the outstanding Voting Shares as a result of such Person becoming
disqualified from relying on Clause 1.1(i)(v) solely because such Person or the Beneficial Owner of such Voting Shares is making or has announced an intention to make a Take-over Bid, either alone or by acting jointly or in concert with any
other Person. For the purposes of this definition, “Disqualification Date” means the first date of public announcement that any Person is making or has announced an intention to make a Take-over Bid;
|
|
(iv) |
an underwriter or member of a banking or selling group that becomes the Beneficial Owner of 20% or more of the Voting Shares in connection with a distribution of securities of the Corporation; or
|
|
(v) |
a Person (a “Grandfathered Person”) who is the Beneficial Owner of 20% or more of the outstanding Voting Shares of the Corporation determined as at the Record Time, provided, however, that this exception shall not
be, and shall cease to be, applicable to a Grandfathered Person in the event that such Grandfathered Person shall, after the Record Time, become the Beneficial Owner of additional Voting Shares of the Corporation that increases its Beneficial
Ownership of Voting Shares by more than 1% of the number of Voting Shares outstanding as at the Record Time (other than pursuant to one or any combination of a Voting Share Reduction, a Permitted Bid Acquisition, an Exempt Acquisition or a
Pro Rata Acquisition).
|
|
(b) |
“Affiliate” when used to indicate a relationship with a Person, means a Person that directly, or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such specified Person;
|
|
(c) |
“Agreement” means this amended and restated shareholder rights plan agreement, which amends and restates the 2018 Amended and Restated Agreement, which
amended and restated the 2012 Amended and Restated Agreement, which amended and restated the Original Agreement; “hereof”, “herein”, “hereto” and similar expressions mean and refer to this Agreement as a whole and not to any particular part
of this Agreement;
|
|
(d) |
“annual cash dividend” means cash dividends paid in any fiscal year of the Corporation to the extent that such cash dividends do not exceed, in the
aggregate, the greatest of:
|
|
(i) |
200% of the aggregate amount of cash dividends declared payable by the Corporation on its Common Shares in its immediately preceding fiscal year;
|
|
(ii) |
300% of the arithmetic mean of the aggregate amounts of the annual cash dividends declared payable by the Corporation on its Common Shares in its three immediately preceding fiscal years; and
|
|
(iii) |
100% of the aggregate consolidated net income of the Corporation, before extraordinary items, for its immediately preceding fiscal year;
|
|
(e) |
“Arrangement” means the arrangement under section 193 of the Business Corporations Act (Alberta)
involving Husky, the Husky shareholders and optionholders, and the Corporation, as contemplated by the Arrangement Agreement, pursuant to which (among other things) the Corporation will acquire all of the issued and outstanding common shares
of Husky in consideration for Common Shares and Arrangement Warrants;
|
|
(f) |
“Arrangement Agreement” means the arrangement agreement dated October 24, 2020 between the Corporation and Husky, as may be amended in accordance with its
terms;
|
|
(g) |
“Arrangement Warrants” means the warrants to purchase Common Shares issuable pursuant to the Arrangement;
|
|
(h) |
“Associate” means, when used to indicate a relationship with a specified Person, a spouse of that Person, any Person of the same or opposite sex with whom
that Person is living in a conjugal relationship outside marriage, a child of that Person or a relative of that Person if that relative has the same residence as that Person;
|
|
(i) |
A Person shall be deemed the “Beneficial Owner” of, and to have “Beneficial Ownership” of, and to “Beneficially Own”,
|
|
(i) |
any securities as to which such Person or any of such Person's Affiliates or Associates is the owner at law or in equity;
|
|
(ii) |
any securities as to which such Person or any of such Person's Affiliates or Associates has the right to become the owner at law or in equity (whether such right is exercisable immediately or within a period of 60
days thereafter and whether or not on condition or the happening of any contingency or the making of any payment) pursuant to any agreement, arrangement, pledge or understanding, whether or not in writing (other than (A) customary agreements
with and between underwriters and/or banking group members and/or selling group members with respect to a public offering or private placement of securities and (B) pledges of securities in the ordinary course of business), or upon the
exercise of any conversion right, exchange right, share purchase right (other than the Rights), warrant or option or pursuant to any when issued trades;
|
|
(iii) |
any securities which are Beneficially Owned within the meaning of Clauses 1.1(i)(i) and (ii) by any other Person with whom such Person is acting jointly or in concert;
|
|
(iv) |
where such security has been, or has been agreed to be, deposited or tendered pursuant to a Lock-up Agreement or is otherwise deposited or tendered to any Take-over Bid made by such Person, made by any of such
Person's Affiliates or Associates or made by any other Person acting jointly or in concert with such Person until such deposited or tendered security has been taken up or paid for, whichever shall first occur;
|
|
(v) |
where such Person, any of such Person's Affiliates or Associates or any other Person acting jointly or in concert with such Person holds such security provided that:
|
|
(A) |
the ordinary business of any such Person (the “Investment Manager”) includes the management of mutual funds or investment funds for others (which others, for greater certainty, may include or be limited to one or
more employee benefit plans or pension plans) and such security is held by the Investment Manager in the ordinary course of such business in the performance of such Investment Manager's duties for the account of any other Person (a “Client”),
including the acquisition or holding of securities in a non-discretionary account held on behalf of a Client by a broker or dealer appropriately registered under applicable law;
|
|
(B) |
such Person (the “Trust Company”) is licensed to carry on the business of a trust company under applicable laws and, as such, acts as trustee or administrator or in a similar capacity in relation to the estates of
deceased or incompetent Persons (each an “Estate Account”) or in relation to other accounts (each an “Other Account”) and holds such security in the ordinary course of such duties for such Estate Account or for such Other Accounts;
|
|
(C) |
such Person is established by statute for purposes that include, and the ordinary business or activity of such Person (the “Statutory Body”) includes, the management of investment funds for employee benefit plans,
pension plans, insurance plans or various public bodies;
|
|
(D) |
such Person (the “Administrator”) is the administrator or trustee of one or more pension funds or plans (a “Plan”), or is a Plan, registered or qualified under the laws of Canada or any Province thereof or the laws
of the United States of America or any State thereof; or
|
|
(E) |
such Person (the “Crown Agent”) is a Crown agent or agency;
|
|
(vi) |
where such Person is (A) a Client of the same Investment Manager as another Person on whose account the Investment Manager holds such security, (B) an Estate Account or an Other Account of the same Trust Company as
another Person on whose account the Trust Company holds such security or (C) a Plan with the same Administrator as another Plan on whose account the Administrator holds such security;
|
|
(vii) |
where such Person is (A) a Client of an Investment Manager and such security is owned at law or in equity by the Investment Manager, (B) an Estate Account or an Other Account of a Trust Company and such security is
owned at law or in equity by the Trust Company or (C) a Plan and such security is owned at law or in equity by the Administrator of the Plan; or
|
|
(viii) |
where such Person is a registered holder of such security as a result of carrying on the business of, or acting as a nominee of, a securities depositary;
|
|
(j) |
“Board of Directors” means the board of directors of the Corporation or any duly constituted and empowered committee thereof;
|
|
(k) |
“Book Entry Form” means, in reference to securities, securities that have been issued and registered in uncertificated form and includes securities evidenced
by an advice or other statement and securities which are maintained electronically on the records of the Corporation’s transfer agent but for which no certificate has been issued;
|
|
(l) |
“Book Entry Rights Exercise Procedures” has the meaning ascribed thereto in Subsection 2.2(d);
|
|
(m) |
“Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions in Calgary are authorized or obligated by law to close;
|
|
(n) |
“CBCA” means the Canada Business Corporations Act, R.S.C. 1985, c.44, as amended, and the
regulations made thereunder, and any comparable or successor laws or regulations thereto;
|
|
(o) |
“Canadian Dollar Equivalent” of any amount which is expressed in United States Dollars means, on any date, the Canadian dollar equivalent of such amount
determined by multiplying such amount by the U.S. - Canadian Exchange Rate in effect on such date;
|
|
(p) |
“close of business” on any given date means the time on such date (or, if such date is not a Business Day, the time on the next succeeding Business Day) at
which the principal transfer office in Calgary of the transfer agent for the Common Shares (or, after the Separation Time, the principal transfer office in Calgary of the Rights Agent) is closed to the public;
|
|
(q) |
“Common Shares” means the common shares in the capital of the Corporation;
|
|
(r) |
“Competing Permitted Bid” means a Take-over Bid that:
|
|
(i) |
is made after a Permitted Bid or another Competing Permitted Bid (each such Permitted Bid or Competing Permitted Bid in this definition, the “Prior Bid”) has been made and prior to the expiry, termination or
withdrawal of the Prior Bid;
|
|
(ii) |
satisfies all components of the definition of a Permitted Bid other than the requirements set out in Paragraph (A) of the definition of a Clause 1.1(pp)(ii) (definition of a Permitted Bid); and
|
|
(iii) |
contains, and the take-up and payment for securities tendered or deposited is subject to, an irrevocable and unqualified condition that no Voting Shares will be taken up or paid for pursuant to the Take-over Bid
prior to the close of business on the last day of the minimum initial deposit period that such Take-over Bid must remain open for deposits of securities thereunder pursuant to NI 62-104 after the date of the Take-over Bid constituting the
Competing Permitted Bid;
|
|
(s) |
a Person is “controlled” by another Person or two or more other Persons acting jointly or in concert if:
|
|
(i) |
in the case of a body corporate, securities entitled to vote in the election of directors of such body corporate carrying more than 50% of the votes for the election of directors are held, directly or indirectly,
by or for the benefit of the other Person or Persons and the votes carried by such securities are entitled, if exercised, to elect a majority of the board of directors of such body corporate; or
|
|
(ii) |
in the case of a Person which is not a body corporate, more than 50% of the voting interests of such entity are held, directly or indirectly, by or for the benefit of the other Person or Persons;
|
|
(t) |
“Co-Rights Agents” has the meaning ascribed thereto in Subsection 4.1(a);
|
|
(u) |
“Disposition Date” has the meaning ascribed thereto in Subsection 5.1(h);
|
|
(v) |
“Dividend Reinvestment Acquisition” means an acquisition of Voting Shares pursuant to a Dividend Reinvestment Plan;
|
|
(w) |
“Dividend Reinvestment Plan” means a regular dividend reinvestment or other plan of the Corporation made available by the Corporation to holders of
|
|
(i) |
dividends paid in respect of shares of any class of the Corporation or a Subsidiary;
|
|
(ii) |
proceeds of redemption of shares of the Corporation or a Subsidiary;
|
|
(iii) |
interest paid on evidences of indebtedness of the Corporation or a Subsidiary; or
|
|
(iv) |
optional cash payments;
|
|
(x) |
“Effective Time” has the meaning ascribed thereto in the Arrangement Agreement;
|
|
(y) |
“Election to Exercise” has the meaning ascribed thereto in Clause 2.2(f)(ii);
|
|
(z) |
“Exempt Acquisition” means a share acquisition:
|
|
(i) |
in respect of which the Board of Directors has waived the application of Section 3.1 pursuant to the provisions of Subsections 5.1(a) or (h);
|
|
(ii) |
pursuant to an amalgamation, plan of arrangement or other procedure (statutory or otherwise) having similar effect which has been approved by the Board of Directors and the holders of Voting Shares by the requisite
majority or majorities of the holders of Voting Shares at a meeting duly called and held for such purpose in accordance with the Corporation’s by-laws, the CBCA and any other applicable legal requirements;
|
|
(iii) |
pursuant to the Arrangement;
|
|
(iv) |
pursuant to the Arrangement Warrants (including, for certainty, any acquisition of Arrangement Warrants or of Voting Shares upon any exercise of Arrangement Warrants); or
|
|
(v) |
pursuant to any exercise of pre-emptive rights, including pursuant to any follow-on offering, in accordance with the terms and conditions of any Pre-Emptive Rights Agreement (as that term is defined in the
Arrangement Agreement);
|
|
(aa) |
“Exercise Price” means, as of any date, the price at which a holder may purchase the securities issuable upon exercise of one whole Right which, until
adjustment thereof in accordance with the terms hereof, shall be:
|
|
(i) |
until the Separation Time, an amount equal to three times the Market Price, from time to time, per Common Share; and
|
|
(ii) |
from and after the Separation Time, an amount equal to three times the Market Price, as at the Separation Time, per Common Share.
|
|
(bb) |
“Expansion Factor” has the meaning ascribed thereto in Clause 2.3(a)(iv)(x);
|
|
(cc) |
“Expiration Time” means the close of business on that date on which a Reconfirmation Meeting occurs and at which this Agreement is not reconfirmed or
presented for reconfirmation as contemplated in Section 5.16;
|
|
(dd) |
“Flip-in Event” means a transaction or other event in or pursuant to which any Person becomes an Acquiring Person;
|
|
(ee) |
“holder” has the meaning ascribed thereto in Section 2.8;
|
|
(ff) |
“Husky” means Husky Energy Inc.;
|
|
(gg) |
“Independent Shareholders” means holders of Voting Shares, other than:
|
|
(i) |
any Acquiring Person;
|
|
(ii) |
any Offeror (other than any Person who, by virtue of Clause 1.1(i)(v), is not deemed to Beneficially Own the Voting Shares held by such Person);
|
|
(iii) |
any Affiliate or Associate of any Acquiring Person or Offeror;
|
|
(iv) |
any Person acting jointly or in concert with any Acquiring Person or Offeror; and
|
|
(v) |
a Person who is a Trustee of any employee benefit plan, deferred profit sharing plan, stock participation plan and any other similar plan or trust for the benefit of employees of the Corporation or a Subsidiary
unless the beneficiaries of the plan or trust direct the manner in which the Voting Shares are to be voted or withheld from voting or direct whether the Voting Shares are to be tendered to a Take-over Bid;
|
|
(hh) |
“Lock-up Agreement” means an agreement between an Offeror, any of its Affiliates or Associates or any other Person acting jointly or in concert with the
Offeror and a Person (the "Locked-up Person") who is not an Affiliate or Associate of the Offeror or a Person acting jointly or in concert with the Offeror whereby the Locked-up Person agrees to deposit or tender the Voting Shares held by the
Locked-up Person to the Offeror's Take-over Bid or to any Take-over Bid made by any of the Offeror's Affiliates or Associates or made by any other Person acting jointly or in concert with the Offeror (the "Subject Bid") provided that:
|
|
(i) |
the terms of such agreement are publicly disclosed and a copy of such agreement is made available to the public (including the Corporation) not later than the date of the Subject Bid or, if the Subject Bid has been
made prior to the date on which such agreement is entered into, not later than the first business day following the date of such agreement;
|
|
(ii) |
the agreement permits the Locked-up Person to withdraw the Voting Shares from the agreement in order to tender or deposit the Voting Shares to another Take-over Bid or to support another transaction that
|
|
(iii) |
(x) the agreement permits the Locked-up Person to withdraw the Voting Shares from the agreement in order to tender or deposit the Voting Shares to another Take-over Bid or to support another transaction that
contains an offering price that provides consideration for each Voting Share that exceeds by as much as or more than a specified amount (the "Specified Amount") the offering price for each Voting Share contained in or proposed to be contained
in the Subject Bid; and (y) the agreement does not by its terms provide for a Specified Amount that is greater than 7% of the offering price contained in or proposed to be contained in the Subject Bid;
|
|
(iv) |
no "break-up" fees, "top-up" fees, penalties, expenses or other amounts that exceed in the aggregate the greater of:
|
|
(A) |
2.50% of the price or value of the consideration payable under the Subject Bid to the Locked-up Person; and
|
|
(B) |
50% of the amount by which the price or value of the consideration payable under another Take-over Bid or transaction to the Locked-up Person exceeds the price or value of the consideration that such Locked-up
Person would have received under the Subject Bid;
|
|
(ii) |
“Market Price” per share of any securities on any date of determination means the average of the daily closing prices per share of such securities
(determined as described below) on each of the 20 consecutive Trading Days through and including the Trading Day immediately preceding such date; provided, however, that if an event of a type analogous to any of the events described in
Section 2.3 hereof shall have caused the closing prices used to determine the Market Price on any Trading Days not to be fully comparable with the closing price on such date of determination or, if the date of determination is not a Trading
Day, on the immediately preceding Trading Day, each such closing price so used shall be appropriately adjusted in a manner analogous to the applicable adjustment provided for in Section 2.3 hereof in order to make it fully comparable with the
closing price on such date of determination or, if the date of determination is not a Trading Day, on the immediately preceding Trading Day. The closing price per share of any securities on any date shall be:
|
|
(i) |
the closing board lot sale price or, in case no such sale takes place on such date, the average of the closing bid and asked prices for each of
|
|
(ii) |
if for any reason none of such prices are available on such day or the securities are not listed or posted for trading on a Canadian stock exchange, the last sale price or, in case no such sale takes place on such
date, the average of the closing bid and asked prices for each of such securities as reported by the principal national United States securities exchange (as determined by volume of trading) on which such securities are listed or admitted to
trading;
|
|
(iii) |
if for any reason none of such prices are available on such day or the securities are not listed or admitted to trading on a Canadian stock exchange or a national United States securities exchange, the last sale
price or, in case no sale takes place on such date, the average of the high bid and low asked prices for each of such securities in the over-the-counter market, as quoted by any recognized reporting system then in use; or
|
|
(iv) |
if for any reason none of such prices are available on such day or the securities are not listed or admitted to trading on a Canadian stock exchange or a national United States securities exchange or quoted by any
such reporting system, the average of the closing bid and asked prices as furnished by a recognized professional market maker making a market in the securities;
|
|
(jj) |
“1934 Exchange Act” means the Securities Exchange Act of 1934 of the United States, as amended,
and the rules and regulations thereunder as now in effect or as the same may from time to time be amended, re-enacted or replaced;
|
|
(kk) |
“NI 62-104” means National Instrument 62-104 Take-Over Bids and Issuer Bids adopted by the
Canadian securities regulatory authorities, as now in effect or as the same may from time to time be amended, re-enacted or replaced;
|
|
(ll) |
“Nominee” has the meaning ascribed thereto in Subsection 2.2(c);
|
|
(mm) |
“Offer to Acquire” includes:
|
|
(i) |
an offer to purchase or a solicitation of an offer to sell Voting Shares; and
|
|
(ii) |
an acceptance of an offer to sell Voting Shares, whether or not such offer to sell has been solicited;
|
|
(nn) |
“Offeror” means a Person who has announced, and has not withdrawn, an intention to make or who has made, and has not withdrawn, a Take-over Bid, other than a
Person who has completed a Permitted Bid, a Competing Permitted Bid or an Exempt Acquisition;
|
|
(oo) |
“Offeror’s Securities” means Voting Shares Beneficially Owned by an Offeror on the date of the Offer to Acquire;
|
|
(pp) |
“Permitted Bid” means a Take-over Bid made by an Offeror by way of take-over bid circular which also complies with the following additional provisions:
|
|
(i) |
the Take-over Bid is made to all holders of Voting Shares as registered on the books of the Corporation, other than the Offeror;
|
|
(ii) |
the Take-over Bid contains, and the take-up and payment for securities tendered or deposited is subject to, an irrevocable and unqualified provision that no Voting Shares will be taken up or paid for pursuant to
the Take-over Bid:
|
|
(A) |
prior to the close of business on the date which is not less than 105 days following the date of the Take-over Bid or such shorter minimum period that a take-over bid that is not exempt from any of the requirements
of Division 5 Bid Mechanics of NI 62-104 must remain open for deposits of securities, in the applicable circumstances at such time, pursuant to NI 62-104 and
|
|
(B) |
only if, at the close of business on the date the Voting Shares are first taken up or paid for under such Take-over Bid, more than 50% of the Voting Shares held by Independent Shareholders shall have been deposited
or tendered pursuant to the Take-over Bid and not withdrawn;
|
|
(iii) |
unless the Take-over Bid is withdrawn, the Take-over Bid contains an irrevocable and unqualified provision that Voting Shares may be deposited pursuant to such Take-over Bid at any time during the period of time
described in Paragraph (A) and that any Voting Shares deposited pursuant to the Take-over Bid may be withdrawn until taken up and paid for; and
|
|
(iv) |
unless the Take-over Bid is withdrawn, the Take-over Bid contains an irrevocable and unqualified provision that in the event that the deposit condition set forth in Paragraph (B) is satisfied the Offeror will make
a public announcement of that fact and the Take-over Bid will remain
|
|
(qq) |
“Permitted Bid Acquisition” means an acquisition of Voting Shares made pursuant to a Permitted Bid or a Competing Permitted Bid;
|
|
(rr) |
“Person” includes any individual, firm, partnership, association, trust, trustee, executor, administrator, legal personal representative, body corporate,
corporation, unincorporated organization, syndicate, a government and its agencies or instrumentalities and any entity or group whether or not having legal personality;
|
|
(ss) |
“Pro Rata Acquisition” means an acquisition by a Person of Voting Shares pursuant to:
|
|
(i) |
a Dividend Reinvestment Acquisition;
|
|
(ii) |
a stock dividend, stock split or other event in respect of securities of the Corporation of one or more particular classes or series pursuant to which such Person becomes the Beneficial Owner of Voting Shares on
the same pro rata basis as all other holders of securities of the particular class, classes or series (other than holders resident in a jurisdiction where a distribution is restricted or impracticable as a result of applicable law);
|
|
(iii) |
the acquisition or the exercise by the Person of only those rights to purchase Voting Shares distributed to that Person in the course of a distribution to all holders of securities of the Corporation of one or more
particular classes or series pursuant to a rights offering or pursuant to a prospectus, provided that the Person does not thereby acquire a greater percentage of such Voting Shares so distributed than the Person's percentage of Voting Shares
Beneficially Owned immediately prior to such acquisition; or
|
|
(iv) |
a distribution of Voting Shares, or securities convertible into or exchangeable for Voting Shares (and the conversion or exchange of such convertible or exchangeable securities), made pursuant to a prospectus or by
way of a private placement or securities exchange take-over bid, provided that the Person does not thereby acquire a greater percentage of such Voting Shares, or securities convertible into or exchangeable for Voting Shares, so offered than
the Person's percentage of Voting Shares Beneficially Owned immediately prior to such acquisition;
|
|
(tt) |
“Record Time” means the time on November 30, 2009 that was immediately following the time of the issuance of Common Shares pursuant to the Initial Cenovus
Share Exchange, as defined in and in accordance with Subsection 3.01(1)(k) of the plan of arrangement implemented pursuant to the arrangement agreement made as of October 20, 2009 among the Corporation, Cenovus Energy Inc. and Encana
Corporation;
|
|
(uu) |
“Reconfirmation Meeting” has the meaning ascribed in Section 5.16;
|
|
(vv) |
“Redemption Price” has the meaning ascribed thereto in Subsection 5.1(b);
|
(ww)
|
“Right” means a right to purchase a Common Share upon the terms and
subject to the conditions set forth in this Agreement;
|
|
(xx) |
“Rights Certificate” means the certificates representing the Rights after the Separation Time, which shall be substantially in the form attached hereto as
Attachment 1;
|
|
(yy) |
“Rights Holders’ Special Meeting” means a meeting of the holders of Rights called by the Board of Directors for the purpose of approving a supplement or
amendment to this Agreement pursuant to Subsection 5.4(c);
|
|
(zz) |
“Rights Register” has the meaning ascribed thereto in Subsection 2.6(a);
|
|
(aaa) |
“Rights Registrar” has the meaning ascribed thereto in Subsection 2.6(a);
|
|
(bbb) |
“Securities Act” means the Securities Act, R.S.A. 2000, c. S-4, as amended, and the regulations
thereunder, and any comparable or successor laws or regulations thereto;
|
|
(ccc) |
“Separation Time” means the close of business on the eighth Trading Day after the earlier of:
|
|
(i) |
the Stock Acquisition Date;
|
|
(ii) |
the date of the commencement of or first public announcement of the intent of any Person (other than the Corporation or any Subsidiary of the Corporation) to commence a Take-over Bid (other than a Permitted Bid, a
Competing Permitted Bid or, for greater certainty, the Arrangement), provided that, if any Take-over Bid referred to in this Clause (ii) expires, is cancelled, terminated or otherwise withdrawn prior to the Separation Time, such Take-over Bid
shall be deemed, for the purposes of this definition, never to have been made; and
|
|
(iii) |
the date on which a Permitted Bid or Competing Permitted Bid ceases to be such;
|
|
(ddd) |
“Stock Acquisition Date” means the first date of public announcement (which, for purposes of this definition, shall include, without limitation, a report
filed pursuant to Part 5 of NI 62-104 or Section 13(d) of the 1934 Exchange Act) by the Corporation or an Acquiring Person that an Acquiring Person has become such or such later date as determined by the Board of Directors;
|
|
(eee) |
“Subsidiary” a corporation is a Subsidiary of another corporation if:
|
|
(i) |
it is controlled by:
|
|
(A) |
that other; or
|
|
(B) |
that other and one or more corporations, each of which is controlled by that other; or
|
(C)
|
two or more corporations, each of which is controlled by that other; or
|
|
(ii) |
it is a Subsidiary of a corporation that is that other's Subsidiary;
|
|
(fff) |
“Take-over Bid” means an Offer to Acquire Voting Shares, or securities convertible into Voting Shares if, assuming that the Voting Shares or convertible
securities subject to the Offer to Acquire are acquired and are Beneficially Owned at the date of such Offer to Acquire by the Person making such Offer to Acquire, such Voting Shares (including Voting Shares that may be acquired upon
conversion of securities convertible into Voting Shares) together with the Offeror's Securities, constitute in the aggregate 20% or more of the outstanding Voting Shares at the date of the Offer to Acquire, but, for greater certainty, does
not include the Arrangement;
|
|
(ggg) |
"TSX" means the Toronto Stock Exchange;
|
|
(hhh) |
“Trading Day”, when used with respect to any securities, means a day on which the principal Canadian stock exchange on which such securities are listed or
admitted to trading is open for the transaction of business or, if the securities are not listed or admitted to trading on any Canadian stock exchange, a Business Day;
|
|
(iii) |
“U.S.-Canadian Exchange Rate” means, on any date:
|
|
(i) |
if on such date the Bank of Canada sets an average noon spot rate of exchange for the conversion of one United States dollar into Canadian dollars, such rate; and
|
|
(ii) |
in any other case, the rate for such date for the conversion of one United States dollar into Canadian dollars calculated in such manner as may be determined by the Board of Directors from time to time acting in
good faith;
|
|
(jjj) |
“Voting Share Reduction” means an acquisition or redemption by the Corporation of Voting Shares which, by reducing the number of Voting Shares outstanding,
increases the proportionate number of Voting Shares Beneficially Owned by any Person to 20% or more of the Voting Shares then outstanding; and
|
|
(kkk) |
“Voting Shares” means the Common Shares and any other shares in the capital of the Corporation entitled to vote generally in the election of all directors.
|
1.2 |
Currency
|
1.3 |
Headings
|
1.4
|
Calculation of Number and Percentage of Beneficial Ownership of Outstanding Voting Shares
|
|
A | = | the number of votes for the election of all directors generally attaching to the Voting Shares Beneficially Owned by such Person; and |
|
B | = | the number of votes for the election of all directors generally attaching to all outstanding Voting Shares. |
1.5 |
Acting Jointly or in Concert
|
1.6 |
Generally Accepted Accounting Principles
|
2.1 |
Legend on Common Share Certificates
|
|
(a) |
Effective at the Record Time, one Right has been issued in respect of each Common Share then issued and outstanding and one Right shall be issued in
|
|
(b) |
Certificates representing Common Shares which are issued and Common Shares that are issued and registered in Book Entry Form, each after the Record Time but prior to the earlier of the Separation Time and the
Expiration Time, shall also evidence, in addition to Common Shares, one Right for each Common Share represented thereby and shall have impressed on, printed on, written on or otherwise affixed to them a legend in a form substantially to the
following effect (adapted accordingly as the Rights Agent may reasonably require):
|
2.2 |
Initial Exercise Price; Exercise of Rights; Detachment of Rights
|
|
(a) |
Subject to adjustment as herein set forth, each Right will entitle the holder thereof, from and after the Separation Time and prior to the Expiration Time, to purchase one Common Share for the Exercise Price (and
the Exercise Price and number of Common Shares are subject to adjustment as set forth below). Notwithstanding any other provision of this Agreement, any Rights held by the Corporation or any of its Subsidiaries shall be void.
|
|
(b) |
Until the Separation Time:
|
|
(i) |
the Rights shall not be exercisable and no Right may be exercised; and
|
|
(ii) |
each Right will be evidenced by the certificate for the associated Common Share of the Corporation registered in the name of the holder thereof (which certificate shall also be deemed to represent a Rights
Certificate) or by Book Entry Form registration for the associated Common Share and will be transferable only together with, and will be transferred by a transfer of, such associated Common Share.
|
|
(c) |
From and after the Separation Time and prior to the Expiration Time:
|
(i)
|
the Rights shall be exercisable; and
|
|
(ii) |
the registration and transfer of Rights shall be separate from and independent of Common Shares of the Corporation.
|
|
(d) |
Promptly following the Separation Time, the Corporation will determine whether it wishes to issue Rights Certificates or whether it will maintain the Rights in Book Entry Form. In the event that the Corporation
determines to maintain Rights in Book Entry Form, it will put in place such alternative procedures (as are determined necessary in consultation with the Rights Agent) for the Rights to be maintained in Book Entry Form (the “Book Entry Rights
Exercise Procedures”), it being hereby acknowledged that such procedures shall, to the greatest extent possible, replicate in all substantive respects the procedures set out in this Agreement with respect to the exercise of the Rights
Certificates and that the procedures set out in this Agreement shall be modified only to the extent necessary, as reasonably determined by the Rights Agent, to permit the Corporation to maintain the Rights in Book Entry Form. In such event,
the Book Entry Rights Exercise Procedures shall be deemed to replace the procedures set out in the Agreement with respect to the exercise of Rights and all provisions of this Agreement referring to the Rights Certificates shall be applicable
to Rights registered in Book Entry Form in like manner as the Rights in certificated form.
|
|
(e) |
In the event the Corporation determines to issue Rights Certificates, it will prepare and the Rights Agent will mail to each holder of record of Common Shares as of the Separation Time (other than an Acquiring
Person, any other person whose Rights are or become void pursuant to the provisions of Subsection 3.1(b)hereof and, in respect of any Rights Beneficially Owned by such Acquiring Person which are not held of record by such Acquiring Person,
the holder of record of such Rights (a “Nominee”)) at such holder's address as shown by the records of the Corporation (the Corporation hereby agreeing to furnish copies of such records to the Rights Agent for this purpose):
|
|
(i) |
a Rights Certificate appropriately completed, representing the number of Rights held by such holder at the Separation Time and having such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Corporation may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law, rule or regulation or with any rule or regulation of any
self-regulatory organization, stock exchange or quotation system on which the Rights may from time to time be listed or traded, or to conform to usage; and
|
|
(ii) |
a disclosure statement prepared by the Corporation describing the Rights,
|
|
(f) |
In the event that the Corporation determines to issue Rights Certificates, Rights may be exercised, in whole or in part, on any Business Day after the Separation Time and prior to the Expiration Time by submitting
to the Rights Agent:
|
(i)
|
the Rights Certificate evidencing such Rights;
|
|
(ii) |
an election to exercise such Rights (an “Election to Exercise”) substantially in the form attached to the Rights Certificate appropriately completed and executed by the holder or his executors or administrators or
other personal representatives or his or their legal attorney duly appointed by an instrument in writing in form and executed in a manner satisfactory to the Rights Agent; and
|
|
(iii) |
payment by certified cheque, banker's draft or money order payable to the order of the Corporation, of a sum equal to the Exercise Price multiplied by the number of Rights being exercised and a sum sufficient to
cover any transfer tax or charge which may be payable in respect of any transfer involved in the transfer or delivery of Rights Certificates or the issuance or delivery of certificates for Common Shares in a name other than that of the holder
of the Rights being exercised.
|
|
(g) |
In the event that the Corporation determines to issue Rights Certificates, then upon receipt of a Rights Certificate, together with a completed Election to Exercise executed in accordance with Clause 2.2(f)(ii),
which does not indicate that such Right is null and void as provided by Subsection 3.1(b), and payment as set forth in Clause 2.2(f)(iii), the Rights Agent (unless otherwise instructed by the Corporation in the event that the Corporation is
of the opinion that the Rights cannot be exercised in accordance with this Agreement) will thereupon promptly:
|
|
(i) |
requisition from the transfer agent certificates representing the number of such Common Shares to be purchased (the Corporation hereby irrevocably authorizing its transfer agent to comply with all such
requisitions);
|
|
(ii) |
when appropriate, requisition from the Corporation the amount of cash to be paid in lieu of issuing fractional Common Shares in accordance with Subsection 5.5(b);
|
|
(iii) |
after receipt of the certificates referred to in Clause 2.2(g)(i), deliver the same to or upon the order of the registered holder of such Rights Certificates, registered in such name or names as may be designated
by such holder;
|
|
(iv) |
when appropriate, after receipt, deliver the cash referred to in Clause 2.2(g)(ii) to or to the order of the registered holder of such Rights Certificate; and
|
|
(v) |
remit to the Corporation all payments received on exercise of the Rights.
|
|
(h) |
In case the holder of any Rights shall exercise less than all the Rights evidenced by such holder's Rights Certificate, a new Rights Certificate evidencing the Rights remaining unexercised (subject to the
provisions of Subsection 5.5(a)) will be issued by the Rights Agent to such holder or to such holder's duly authorized assigns.
|
|
(i) |
The Corporation covenants and agrees that it will:
|
(i)
|
take all such action as may be necessary and within its power to ensure that all Common Shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such Common Shares (subject to payment of the Exercise Price), be duly and validly authorized, executed, issued and delivered as fully paid and non-assessable;
|
|
(ii) |
take all such action as may be necessary and within its power to comply with the requirements of the CBCA, the Securities Act and the securities laws or
comparable legislation of each of the provinces of Canada, and any other applicable law, rule or regulation, in connection with the issuance and delivery of the Rights Certificates and the issuance of any Common Shares upon exercise of
Rights;
|
|
(iii) |
use reasonable efforts to cause all Common Shares issued upon exercise of Rights to be listed on the stock exchanges on which such Common Shares were traded immediately prior to the Stock Acquisition Date;
|
|
(iv) |
cause to be reserved and kept available out of the authorized and unissued Common Shares, the number of Common Shares that, as provided in this Agreement, will from time to time be sufficient to permit the exercise
in full of all outstanding Rights;
|
|
(v) |
pay when due and payable, if applicable, any and all federal, provincial and municipal transfer taxes and charges (not including any income or capital taxes of the holder or exercising holder or any liability of
the Corporation to withhold tax) which may be payable in respect of the original issuance or delivery of the Rights Certificates, or certificates for Common Shares to be issued upon exercise of any Rights, provided that the Corporation shall
not be required to pay any transfer tax or charge which may be payable in respect of any transfer involved in the transfer or delivery of Rights Certificates or the issuance or delivery of certificates for Common Shares in a name other than
that of the holder of the Rights being transferred or exercised; and
|
|
(vi) |
after the Separation Time, except as permitted by Section 5.1, not take (or permit any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
|
2.3 |
Adjustments to Exercise Price; Number of Rights
|
|
(a) |
In the event the Corporation shall at any time after the date of this Agreement:
|
|
(i) |
declare or pay a dividend on Common Shares payable in Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the
|
|
(ii) |
subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
|
|
(iii) |
consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
|
|
(iv) |
issue any Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation) in respect of, in lieu of or in exchange for
existing Common Shares except as otherwise provided in this Section 2.3,
|
|
(x) |
the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion
Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof; and
|
|
(y) |
each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor,
|
|
(b) |
In the event the Corporation shall at any time after the Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares entitling them
(for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for or carrying a right to purchase Common Shares) at a price per Common Share
(or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or
exchangeable security or right per share) less than the Market Price per Common Share on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction:
|
|
(i) |
the numerator of which shall be the number of Common Shares outstanding on such record date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered
(and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered, including the price required to be paid to purchase such convertible or exchangeable securities or
rights) would purchase at such Market Price per Common Share; and
|
|
(ii) |
the denominator of which shall be the number of Common Shares outstanding on such record date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible
or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable).
|
|
(c) |
In the event the Corporation shall at any time after the Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such
distribution made in connection with a merger, arrangement or amalgamation) of evidences of indebtedness, cash (other than a regular periodic cash dividend or a dividend referred to in Clause 2.3(a)(i), but including any dividend payable in
other securities of the Corporation, other than Common Shares), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(b)), the Exercise Price to be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
|
|
(i) |
the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights, options or warrants so to be distributed;
and
|
|
(ii) |
the denominator of which shall be such Market Price per Common Share.
|
|
(d) |
Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% in the Exercise Price; provided,
however, that any adjustments which by reason of this Subsection 2.3(d)are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest
cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(d), any adjustment required by Section 2.3shall be made no later than the earlier of:
|
|
(i) |
three years from the date of the transaction which gives rise to such adjustment; or
|
|
(ii) |
the Expiration Time.
|
|
(e) |
In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights, options or warrants to subscribe for or
purchase any such
|
|
(f) |
Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares
purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
|
|
(g) |
Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to
express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
|
|
(h) |
In any case in which this Section 2.3shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of
such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other
securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument
evidencing such holder's right to receive such additional shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
|
|
(i) |
Notwithstanding anything contained in this Section 2.3to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this
Section 2.3, as and to the extent that in their good faith judgment the Board of Directors determines to be advisable, in order that any:
|
|
(i) |
consolidation or subdivision of Common Shares;
|
|
(ii) |
issuance (wholly or in part for cash) of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares;
|
|
(iii) |
stock dividends; or
|
|
(iv) |
issuance of rights, options or warrants referred to in this Section 2.3,
|
|
(j) |
Whenever an adjustment to an Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this Section 2.3, the Corporation shall promptly:
|
|
(i) |
file with the Rights Agent and with the transfer agent for the Corporation a certificate specifying the particulars of such adjustment or change; and
|
|
(ii) |
cause notice of the particulars of such adjustment or change to be given to the holders of the Rights.
|
2.4 |
Date on Which Exercise is Effective
|
2.5 |
Execution, Authentication, Delivery and Dating of Rights Certificates
|
|
(a) |
The Rights Certificates shall be executed on behalf of the Corporation by its Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer, any Vice-President, Treasurer, Corporate Secretary,
or any Assistant Secretary of the Corporation under the corporate seal of the Corporation reproduced thereon. The signature of any of these officers on the Rights Certificates may be manual, facsimile or email scanned copy. Rights
Certificates bearing the manual, facsimile or email scanned signatures of individuals who were at any time the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices either before or after the countersignature and delivery of such Rights Certificates.
|
|
(b) |
Promptly after the Corporation learns of the Separation Time, the Corporation will notify the Rights Agent of such Separation Time and will deliver a disclosure statement and Rights Certificates executed by the
Corporation to
|
|
(c) |
Each Rights Certificate shall be dated the date of countersignature thereof.
|
2.6 |
Registration, Transfer and Exchange
|
|
(a) |
After the Separation Time, the Corporation will cause to be kept a register (the “Rights Register”) in which, subject to such reasonable regulations as it may prescribe, the Corporation will provide for the
registration and transfer of Rights. The Rights Agent is hereby appointed registrar for the Rights (the “Rights Registrar”) for the purpose of maintaining the Rights Register for the Corporation and registering Rights and transfers of Rights
as herein provided and the Rights Agent hereby accepts such appointment. In the event that the Rights Agent shall cease to be the Rights Registrar, the Rights Agent will have the right to examine the Rights Register at all reasonable times.
|
|
(b) |
All Rights issued upon any registration of transfer or exchange of Rights Certificates shall be the valid obligations of the Corporation, and such Rights shall be entitled to the same benefits under this Agreement
as the Rights surrendered upon such registration of transfer or exchange.
|
|
(c) |
Every Rights Certificate surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer satisfactory in form to the Corporation or the Rights
Agent, as the case may be, duly executed by the holder thereof or such holder's attorney duly authorized in writing. As a condition to the issuance of any new Rights Certificate under this Section 2.6, the Corporation may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the reasonable fees and expenses of the Rights Agent) connected therewith.
|
2.7 |
Mutilated, Destroyed, Lost and Stolen Rights Certificates
|
|
(a) |
If any mutilated Rights Certificate is surrendered to the Rights Agent prior to the Expiration Time, the Corporation shall execute and the Rights Agent shall countersign and deliver in exchange therefor a new
Rights Certificate
|
|
(b) |
If there shall be delivered to the Corporation and the Rights Agent prior to the Expiration Time:
|
|
(i) |
evidence to their reasonable satisfaction of the destruction, loss or theft of any Rights Certificate; and
|
|
(ii) |
such security or indemnity as may be reasonably required by them in their sole discretion to save each of them and any of their agents harmless;
|
|
(c) |
As a condition to the issuance of any new Rights Certificate under this Section 2.7, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the reasonable fees and expenses of the Rights Agent) connected therewith.
|
|
(d) |
Every new Rights Certificate issued pursuant to this Section 2.7 in lieu of any destroyed, lost or stolen Rights Certificate shall evidence the contractual obligation of the Corporation, whether or not the
destroyed, lost or stolen Rights Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Rights duly issued hereunder.
|
2.8 |
Persons Deemed Owners of Rights
|
2.9 |
Delivery and Cancellation of Certificates
|
2.10 |
Agreement of Rights Holders
|
|
(a) |
to be bound by and subject to the provisions of this Agreement, as amended from time to time in accordance with the terms hereof, in respect of all Rights held;
|
|
(b) |
that prior to the Separation Time, each Right will be transferable only together with, and will be transferred by a transfer of, the associated Common Share certificate representing such Right;
|
|
(c) |
that after the Separation Time, the Rights Certificates will be transferable only on the Rights Register as provided herein;
|
|
(d) |
that prior to due presentment of a Rights Certificate (or, prior to the Separation Time, the associated Common Share certificate) for registration of transfer, the Corporation, the Rights Agent and any agent of the
Corporation or the Rights Agent may deem and treat the Person in whose name the Rights Certificate (or, prior to the Separation Time, the associated Common Share certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on such Rights Certificate or the associated Common Share certificate made by anyone other than the Corporation or the Rights Agent) for all purposes whatsoever, and
neither the Corporation nor the Rights Agent shall be affected by any notice to the contrary;
|
|
(e) |
that such holder of Rights has waived his right to receive any fractional Rights or any fractional shares or other securities upon exercise of a Right (except as provided herein);
|
|
(f) |
that, subject to the provisions of Section 5.4, without the approval of any holder of Rights or Voting Shares and upon the sole authority of the Board of Directors, acting in good faith, this Agreement may be
supplemented or amended from time to time to cure any ambiguity or to correct or supplement any provision contained herein which may be inconsistent with the intent of this Agreement or is otherwise defective, as provided herein; and
|
|
(g) |
that notwithstanding anything in this Agreement to the contrary, neither the Corporation nor the Rights Agent shall have any liability to any holder of a Right or any other Person as a result of its inability to
perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of such obligation.
|
2.11
|
Rights Certificate Holder Not Deemed a Shareholder
|
3.1 |
Flip-in Event
|
|
(a) |
Subject to Subsection 3.1(b) and Section 5.1, if prior to the Expiration Time a Flip-in Event occurs, each Right shall constitute, effective at the close of business on the eighth Trading Day after the Stock
Acquisition Date, the right to purchase from the Corporation, upon exercise thereof in accordance with the terms hereof, that number of Common Shares having an aggregate Market Price on the date of consummation or occurrence of such Flip-in
Event equal to twice the Exercise Price for an amount in cash equal to the Exercise Price (such right to be appropriately adjusted in a manner analogous to the applicable adjustment provided for in Section 2.3 in the event that after such
consummation or occurrence, an event of a type analogous to any of the events described in Section 2.3 shall have occurred).
|
|
(b) |
Notwithstanding anything in this Agreement to the contrary, upon the occurrence of any Flip-in Event, any Rights that are or were Beneficially Owned on or after the earlier of the Separation Time or the Stock
Acquisition Date by:
|
|
(i) |
an Acquiring Person (or any Affiliate or Associate of an Acquiring Person or any Person acting jointly or in concert with an Acquiring Person or any Affiliate or Associate of an Acquiring Person); or
|
|
(ii) |
a transferee of Rights, directly or indirectly, from an Acquiring Person (or any Affiliate or Associate of an Acquiring Person or any Person acting jointly or in concert with an Acquiring Person or any Affiliate or
Associate of an Acquiring Person), where such transferee becomes a transferee concurrently with or subsequent to the Acquiring Person becoming such in a transfer that the Board of Directors has determined is part of a plan, arrangement or
scheme of an Acquiring Person (or any Affiliate or Associate of an Acquiring Person or any Person acting jointly or in concert with an Acquiring Person or any Affiliate or Associate of an Acquiring Person), that has the purpose or effect of
avoiding Clause 3.1(b)(i),
|
|
(c) |
From and after the Separation Time, the Corporation shall do all such acts and things as shall be necessary and within its power to ensure compliance with the provisions of this Section 3.1, including without
limitation, all such acts and things as may be required to satisfy the requirements of the CBCA, the Securities Act and the securities laws or comparable legislation of each of the
provinces of Canada and of the United States and each of the states thereof in respect of the issue of Common Shares upon the exercise of Rights in accordance with this Agreement.
|
|
(d) |
Any Rights Certificate that represents Rights Beneficially Owned by a Person described in either Clause 3.1(b)(i) or (ii) or transferred to any nominee of any such Person, and any Rights Certificate issued upon
transfer, exchange, replacement or adjustment of any other Rights Certificate referred to in this sentence, shall contain the following legend:
|
4.1 |
General
|
|
(a) |
The Corporation hereby appoints the Rights Agent to act as agent for the Corporation and the holders of the Rights in accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Corporation may from time to time appoint such co-Rights Agents (“Co-Rights Agents”) as it may deem necessary or desirable, subject to the approval of the Rights Agent. In the event the Corporation appoints one or more
Co-Rights Agents, the respective duties of the Rights Agent and Co-Rights Agents shall be as the Corporation may determine, with the approval of the Rights Agent and the Co-Rights Agent. The Corporation agrees to pay all reasonable fees and
expenses of the Rights Agent in respect of the performance of its duties under this Agreement. The Corporation also agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss,
|
|
(b) |
The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its administration of this Agreement in reliance upon any
certificate for Common Shares, Rights Certificate, certificate for other securities of the Corporation, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, opinion,
statement, or other paper or document believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
|
|
(c) |
The Corporation shall inform the Rights Agent in a reasonably timely manner of events which may materially affect the administration of this Agreement by the Rights Agent and, at any time upon request, shall
provide to the Rights Agent an incumbency certificate certifying the then current officers of the Corporation.
|
4.2 |
Merger, Amalgamation or Consolidation or Change of Name of Rights Agent
|
|
(a) |
Any corporation into which the Rights Agent may be merged or amalgamated or with which it may be consolidated, or any corporation resulting from any merger, amalgamation, statutory arrangement or consolidation to
which the Rights Agent is a party, or any corporation succeeding to the shareholder or stockholder services business of the Rights Agent, will be the successor to the Rights Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Rights Agent under the provisions of Section 4.4 hereof. If at the time such successor Rights
Agent succeeds to the agency created by this Agreement any of the Rights Certificates have been countersigned but not delivered, the successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and if at that time any of the Rights have not been countersigned, any successor Rights Agent may countersign such Rights Certificates in the name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Rights Certificates will have the full force provided in the Rights Certificates and in this Agreement.
|
|
(b) |
If, at any time, the name of the Rights Agent is changed and at such time any of the Rights Certificates have been countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and if, at that time, any of the Rights Certificates have not been countersigned, the Rights Agent may countersign such Rights Certificates either in its prior name or in its changed
name; and in all such cases such Rights Certificates shall have the full force provided in the Rights Certificates and in this Agreement.
|
4.3
|
Duties of Rights Agent
|
|
(a) |
the Rights Agent, at the expense of the Corporation, may consult with and retain legal counsel (who may be legal counsel for the Corporation) and such other experts as it reasonably considers necessary to perform
its duties hereunder, and the opinion of such counsel or other expert will be full and complete authorization and protection to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such opinion;
|
|
(b) |
whenever in the performance of its duties under this Agreement, the Rights Agent deems it necessary or desirable that any fact or matter be proved or established by the Corporation prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect thereof is specifically prescribed herein) is deemed to be conclusively proved and established by a certificate signed by a Person believed by the Rights Agent to be the
Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer, any Vice-President, Treasurer, Corporate Secretary, or any Assistant Secretary of the Corporation and delivered to the Rights Agent; and such certificate will
be full authorization to the Rights Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate;
|
|
(c) |
the Rights Agent will be liable hereunder for its own negligence, bad faith or willful misconduct;
|
|
(d) |
the Rights Agent will not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the certificates for Common Shares or the Rights Certificates (except its
countersignature thereof) or be required to verify the same, but all such statements and recitals are and will be deemed to have been made by the Corporation only;
|
|
(e) |
the Rights Agent will not have any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due authorization, execution and delivery hereof by the Rights Agent)
or in respect of the validity or execution of any certificate for a Common Share or Rights Certificate (except its countersignature thereof); nor will it be responsible for any breach by the Corporation of any covenant or condition contained
in this Agreement or in any Rights Certificate; nor will it be responsible for any change in the exerciseability of the Rights (including the Rights becoming void pursuant to Subsection 3.1(b) hereof) or any adjustment required under the
provisions of Section 2.3 hereof or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment (except with respect to the exercise of Rights after
receipt of the certificate contemplated by Section 2.3 describing any such adjustment); nor is it deemed by any act hereunder to make any representation or warranty as to the authorization of any Common Shares to be issued pursuant to this
Agreement or any Rights or as to whether any Common Shares will, when issued, be duly and validly authorized, executed, issued and delivered and fully paid and non-assessable;
|
(f)
|
the Corporation agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement;
|
|
(g) |
the Rights Agent is hereby authorized and directed to accept instructions in writing with respect to the performance of its duties hereunder from any individual believed by the Rights Agent to be the Chairman of
the Board, President, Chief Executive Officer, Chief Financial Officer, any Vice-President, Treasurer, Corporate Secretary or any Assistant Secretary of the Corporation, and to apply to such individuals for advice or instructions in
connection with its duties, and it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such individual;
|
|
(h) |
the Rights Agent and any shareholder or stockholder, director, officer or employee of the Rights Agent may buy, sell or deal in Common Shares, Rights or other securities of the Corporation or become pecuniarily
interested in any transaction in which the Corporation may be interested, or contract with or lend money to the Corporation or otherwise act as fully and freely as though it were not Rights Agent under this Agreement and nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Corporation or for any other legal entity; and
|
|
(i) |
the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Corporation resulting from any such act, default, neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
|
4.4 |
Change of Rights Agent
|
4.5 |
Compliance with Money Laundering Legislation
|
|
(a) |
that the Rights Agent’s written notice shall describe the circumstances of such non-compliance; and
|
|
(b) |
that if such circumstances are rectified to the Rights Agent’s satisfaction within such 10-day period, then such resignation shall not be effective.
|
5.1 |
Redemption and Waiver
|
|
(a) |
The Board of Directors acting in good faith may, until the occurrence of a Flip-in Event, upon prior written notice delivered to the Rights Agent, waive the application of Section 3.1 to a particular Flip-in Event
that would result from a Take-over Bid made by way of take-over bid circular to all holders of Voting Shares (which for greater certainty shall not include the circumstances described in Subsection 5.1(h)); provided that if the Board of
Directors waives the application of Section 3.1 to a particular Flip-in Event pursuant to this Subsection 5.1(a), the Board of Directors shall be deemed to have waived the application of Section 3.1 to any other Flip-in Event occurring by
reason of any Take-over Bid which is made by means of a take-over bid circular to all holders of Voting Shares prior to the expiry of any Take-over Bid (as the same may be extended from time to time) in respect of which a waiver is, or is
deemed to have been, granted under this Subsection 5.1(a).
|
|
(b) |
Subject to the prior consent of the holders of the Voting Shares or the Rights as set forth in Subsections 5.4(b) or (c), as applicable, the Board of Directors acting in good faith may, at its option, at any time
prior to the provisions of Section 3.1 becoming applicable as a result of the occurrence of a Flip-in Event, elect to redeem all but not less than all of the outstanding Rights at a redemption price of $0.000001 per Right appropriately
adjusted in a manner analogous to the applicable adjustment provided for in Section 2.3 if an event of the type analogous to any of the events described in Section 2.3 shall have occurred (such redemption price being herein referred to as the
"Redemption Price").
|
(c)
|
Where, pursuant to a Permitted Bid, a Competing Permitted Bid or an Exempt Acquisition under Subsection 5.1(a), a Person
acquires outstanding Voting Shares, other than Voting Shares Beneficially Owned by such Person at the date of the Permitted Bid, the Competing Permitted Bid or the Exempt Acquisition under Subsection 5.1(a), then the Board of Directors
shall immediately upon the consummation of such acquisition without further formality and without any approval under Subsection 5.4(b) or (c) be deemed to have elected to redeem the Rights at the Redemption Price.
|
|
(d) |
Where a Take-over Bid that is not a Permitted Bid Acquisition is withdrawn or otherwise terminated after the Separation Time has occurred and prior to the occurrence of a Flip-in Event, the Board of Directors may
elect to redeem all the outstanding Rights at the Redemption Price.
|
|
(e) |
If the Board of Directors is deemed under Subsection 5.1(c) to have elected, or elects under either of Subsection 5.1(b) or (d), to redeem the Rights, the right to exercise the Rights will thereupon, without
further action and without notice, terminate and the only right thereafter of the holders of Rights shall be to receive the Redemption Price.
|
|
(f) |
Within 10 days after the Board of Directors is deemed under Subsection 5.1(c) to have elected, or elects under Subsections 5.1(b) or (d), to redeem the Rights, the Corporation shall give notice of redemption to the
holders of the then outstanding Rights by mailing such notice to each such holder at his last address as it appears upon the registry books of the Rights Agent or, prior to the Separation Time, on the registry books of the transfer agent for
the Voting Shares. Any notice which is mailed in the manner provided herein shall be deemed given, whether or not the holder receives the notice. Each notice of redemption will state the method by which the payment of the Redemption Price
will be made.
|
|
(g) |
Upon the Rights being redeemed pursuant to Subsection 5.1(d), all the provisions of this Agreement shall continue to apply as if the Separation Time had not occurred and Rights Certificates representing the number
of Rights held by each holder of record of Common Shares as of the Separation Time had not been mailed to each such holder and for all purposes of this Agreement the Separation Time shall be deemed not to have occurred and the Rights shall
remain attached to the outstanding Common Shares, subject to and in accordance with the provisions of this Agreement.
|
|
(h) |
The Board of Directors may waive the application of Section 3.1 in respect of the occurrence of any Flip-in Event if the Board of Directors has determined within eight Trading Days following a Stock Acquisition
Date that a Person became an Acquiring Person by inadvertence and without any intention to become, or knowledge that it would become, an Acquiring Person under this Agreement and, in the event that such a waiver is granted by the Board of
Directors, such Stock Acquisition Date shall be deemed not to have occurred. Any such waiver pursuant to this Subsection 5.1(h) must be on the condition that such Person, within 14 days after the foregoing determination by the Board of
Directors or such earlier or later date as the Board of Directors may determine (the “Disposition Date”), has reduced its Beneficial Ownership of Voting Shares so that the Person is no longer an Acquiring Person. If the Person remains an
Acquiring Person at the close of business on the Disposition Date, the Disposition Date shall be deemed to be the date of
|
|
(i) |
The Corporation shall give prompt written notice to the Rights Agent of any waiver of the application of Section 3.1 made by the Board of Directors under this Section 5.1.
|
5.2 |
Expiration
|
5.3 |
Issuance of New Rights Certificates
|
5.4 |
Supplements and Amendments
|
|
(a) |
The Corporation may make amendments to this Agreement to correct any clerical or typographical error or, subject to Subsection 5.4(e), which are required to maintain the validity of this Agreement as a result of
any change in any applicable legislation, rules or regulations thereunder. Notwithstanding anything in this Section 5.4 to the contrary, no such supplement or amendment shall be made to the provisions of Article 4 except with the written
concurrence of the Rights Agent to such supplement or amendment.
|
|
(b) |
Subject to Subsection 5.4(a), the Corporation may, with the prior consent of the holders of Voting Shares obtained as set forth below, at any time prior to the Separation Time, amend, vary or rescind any of the
provisions of this Agreement and the Rights, (whether or not such action would materially adversely affect the interests of the holders of Rights generally). Such consent shall be deemed to have been given if the action requiring such
approval is authorized by the affirmative vote of a majority of the votes cast by Independent Shareholders present or represented at and entitled to be voted at a meeting of the holders of Voting Shares duly called and held in compliance with
applicable laws and the articles and by-laws of the Corporation.
|
|
(c) |
The Corporation may, with the prior consent of the holders of Rights, at any time on or after the Separation Time, amend, vary or delete any of the provisions of this Agreement and the Rights (whether or not such
action would materially adversely affect the interests of the holders of Rights generally), provided that no such amendment, variation or deletion shall be made to the provisions of Article 4 except with the written concurrence of the Rights
Agent thereto. Such consent shall be deemed to have been given if such amendment, variation or deletion is authorized by the affirmative votes of the holders of Rights present or represented at and entitled to be voted at a meeting of the
holders and representing 50% plus one of the votes cast in respect thereof.
|
(d)
|
Any approval of the holders of Rights shall be deemed to have been given if the action requiring such approval is authorized
by the affirmative votes of the holders of Rights present or represented at and entitled to be voted at a meeting of the holders of Rights and representing a majority of the votes cast in respect thereof. For the purposes hereof, each
outstanding Right (other than Rights which are void pursuant to the provisions hereof) shall be entitled to one vote, and the procedures for the calling, holding and conduct of the meeting shall be those, as nearly as may be, which are
provided in the Corporation's by-laws and the CBCA with respect to meetings of shareholders of the Corporation.
|
|
(e) |
Any amendments made by the Corporation to this Agreement pursuant to Subsection 5.4(a) which are required to maintain the validity of this Agreement as a result of any change in any applicable legislation, rule or
regulation thereunder shall:
|
|
(i) |
if made before the Separation Time, be submitted to the shareholders of the Corporation at the next meeting of shareholders and the shareholders may, by the majority referred to in Subsection 5.4(b), confirm or
reject such amendment; or
|
|
(ii) |
if made after the Separation Time, be submitted to the holders of Rights at a meeting to be called for on a date not later than immediately following the next meeting of shareholders of the Corporation and the
holders of Rights may, by resolution passed by the majority referred to in Subsection 5.4(d), confirm or reject such amendment.
|
5.5 |
Fractional Rights and Fractional Shares
|
|
(a) |
The Corporation shall not be required to issue fractions of Rights or to distribute Rights Certificates which evidence fractional Rights. After the Separation Time, in lieu of issuing fractional Rights, the
Corporation shall pay to the holders of record of the Rights Certificates (provided the Rights represented by such Rights Certificates are not void pursuant to the provisions of Subsection 3.1(b), at the time such fractional Rights would
otherwise be issuable), an amount in cash equal to the fraction of the Market Price of one whole Right that the fraction of a Right that would otherwise be issuable is of one whole Right.
|
(b)
|
The Corporation shall not be required to issue fractions of Common Shares upon exercise of Rights or to distribute
certificates which evidence fractional Common Shares. In lieu of issuing fractional Common Shares, the Corporation shall pay to the registered holders of Rights Certificates, at the time such Rights are exercised as herein provided, an
amount in cash equal to the fraction of the Market Price of one Common Share that the fraction of a Common Share that would otherwise be issuable upon the exercise of such Right is of one whole Common Share at the date of such exercise.
|
|
(c) |
The Rights Agent shall have no obligation to make any payments in lieu of issuing fractions of Rights or Common Shares pursuant to Subsection 5.5(a) or 5.5(b), respectively, unless and until the Corporation shall
have provided to the Rights Agent the amount of cash to be paid in lieu of issuing such fractional Rights or Common Shares, as the case may be.
|
5.6 |
Rights of Action
|
5.7 |
Regulatory Approvals
|
5.8 |
Declaration as to Non-Canadian or Non-U.S. Holders
|
5.9 |
Notices
|
|
(a) |
Notices or demands authorized or required by this Agreement to be given or made by the Rights Agent or by the holder of any Rights to or on the
|
|
(b) |
Notices or demands authorized or required by this Agreement to be given or made by the Corporation or by the holder of any Rights to or on the Rights Agent shall be sufficiently given or made if delivered, sent by
registered or certified mail, postage prepaid (until another address is filed in writing with the Corporation), or sent by facsimile or other form of recorded electronic communication, charges prepaid and confirmed in writing, as follows:
|
|
(c) |
Notices or demands authorized or required by this Agreement to be given or made by the Corporation or the Rights Agent to or on the holder of any Rights shall be sufficiently given or made if delivered or sent by
first class mail, postage prepaid, addressed to such holder at the address of such holder as it appears upon the register of the Rights Agent or, prior to the Separation Time, on the register of the Corporation for its Common Shares. Any
notice which is mailed or sent in the manner herein provided shall be deemed given, whether or not the holder receives the notice.
|
|
(d) |
Any notice given or made in accordance with this Section 5.9 shall be deemed to have been given and to have been received on the day of delivery, if so delivered, on the third Business Day (excluding each day
during which there exists any general interruption of postal service due to strike, lockout or other cause) following the mailing thereof, if so mailed, and on the day of telegraphing, telecopying or sending of the same by other means of
recorded electronic communication (provided such sending is during the normal business hours of the addressee on a Business Day and if not, on the first Business Day thereafter). Each of the Corporation and the Rights Agent may from time to
time change its address for notice by notice to the other given in the manner aforesaid.
|
5.10 |
Costs of Enforcement
|
5.11
|
Successors
|
5.12 |
Benefits of this Agreement
|
5.13 |
Governing Law
|
5.14 |
Severability
|
5.15 |
Coming Into Effect
|
5.16 |
Reconfirmation
|
5.17 |
Determinations and Actions by the Board of Directors
|
5.18 |
Time of the Essence
|
5.19 |
Execution in Counterparts
|
CENOVUS ENERGY INC.
|
|||
By:
|
(signed) "Alex J. Pourbaix"
|
||
Name: Alex J. Pourbaix
|
|||
Title: President & Chief Executive Officer
|
|||
By:
|
(signed) "Gary F. Molnar"
|
||
Name: Gary F. Molnar
|
|||
Title: Vice-President, Legal, Assistant General Counsel
& Corporate Secretary
|
|||
c/s
|
|||
COMPUTERSHARE INVESTOR SERVICES INC.
|
|||
By:
|
(signed) "Stephen Bandola"
|
||
Name: Stephen Bandola
|
|||
Title: Relationship Manager
|
|||
By:
|
(signed) "Tara Israelson"
|
||
Name: Tara Israelson
|
|||
Title: General Manager, Client Services
|
|||
|
c/s
|
Certificate No. _______
|
Rights _________
|
CENOVUS ENERGY INC.
|
|
By:
|
|
By:
|
|
COMPUTERSHARE INVESTOR SERVICES INC.
|
|
By:
|
|
By:
|
|
(Please print name and address of transferee.)
|
Signature Guaranteed:
|
Signature
|
(Signature must correspond to name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever.)
|
|
Signature
|
|
(To be attached to each Rights Certificate)
|
(Name)
|
(Address)
|
(City and Province)
|
Social Insurance Number or other taxpayer identification number.
|
(Name)
|
(Address)
|
(City and Province)
|
Social Insurance Number or other taxpayer identification number.
|
Signature Guaranteed:
|
Signature
|
(Signature must correspond to name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever.)
|
|
Signature
|
|
(To be attached to each Rights Certificate)
|
(a) |
"Affiliate" means as follows: a Person (first Person) is
considered to be an Affiliate of another Person (second Person) if the first Person: (i) Controls the second Person, or (ii) is Controlled by the second Person, or (iii) is Controlled by another Person that Controls, directly or indirectly,
the second Person;
|
(b) |
"Applicable Securities Laws" means (i) collectively, the
securities acts or similar statutes of each of the provinces and territories of Canada and the respective rules and regulations under such laws, together with applicable published national, multilateral and local policy statements,
instruments, notices and blanket orders of the provinces and territories of Canada and all rules, by-laws and regulations governing the Toronto Stock Exchange; and (ii) federal and state securities legislation of the United States and all
rules, regulations and orders promulgated thereunder, and all rules, by-laws and regulations governing the New York Stock Exchange;
|
(c) |
"Bought Deal" means a fully underwritten offering on a bought
deal basis pursuant to which an underwriter has, or underwriters have, committed to purchase Common Shares or Convertible Securities of the Corporation pursuant to a "bought deal" letter prior to the filing of a prospectus under applicable
Canadian securities laws;
|
(d) |
"Business Day" means any day on which banks are generally open
for the transaction of commercial business in Calgary, Alberta, but does not in any event include a Saturday or Sunday or statutory holiday in Alberta;
|
(e) |
"Common Shares" means the common shares in the capital of the
Corporation and includes any shares of the Corporation into which such common shares may be converted, reclassified, subdivided, consolidated, exchanged or otherwise changed, whether pursuant to a reorganization, amalgamation, merger,
arrangement or other form of reorganization;
|
(f) |
"Control" means as follows: a Person (first Person) is considered
to Control another Person (second Person) if:
|
|
(i) |
the first Person beneficially owns, or controls or directs, securities of the second Person carrying votes which, if exercised, would entitle the first Person to elect
a majority of the directors of the second Person unless that first person holds the voting securities only to secure an obligation;
|
|
(ii) |
the second Person is a partnership, other than a limited partnership, and the first Person directly or indirectly holds more than 50% of the interests of the
partnership; or
|
|
(iii) |
the second Person is a limited partnership and the first Person is the general partner of the limited partnership;
|
(g) |
"Convertible Securities" means any equity securities, rights,
options, warrants or other convertible securities which in each case represent rights to purchase Common Shares;
|
(h) |
"Exempt Issuances" means any issuance or sale of Subject
Securities to which the Pre-emptive Right does not apply pursuant to paragraphs (a)-(d) of Section 2.3;
|
(i) |
"Follow-On Offering" shall have the meaning set out in Section
2.2(c);
|
(j) |
"Governmental Authority" means any stock exchange or any court,
tribunal or judicial or arbitral body or other governmental department, regulatory agency or body, commission, board, bureau, agency, or instrumentality of Canada or the United States, or of any country, state, province, territory, county,
municipality, city, town or other political jurisdiction, whether domestic or foreign and whether now or in the future constituted or existing;
|
(k) |
"Offering" shall have the meaning set out in Section 2.1(a);
|
(l) |
"Offering Convertible Securities" means Convertible Securities
issued or sold pursuant to an Offering so long as the Shareholder was provided an Offer Notice in respect of such Offering or the Corporation has complied with its obligations in respect of a Follow-On Offering as contemplated in Section
2.2(c);
|
(m) |
"Parties" means, the Corporation, the Shareholder and their
respective successors and permitted assigns hereunder, and "Party" means any one of them;
|
(n) |
"Person" means any individual, partnership, limited partnership,
limited liability partnership, limited or unlimited liability company or corporation, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, unincorporated syndicate,
unincorporated organization, trust, trustee, executor, administrator or other legal personal representative or governmental authority or entity however designated or constituted;
|
(o) |
"Registration Rights Agreement" an agreement with any Person that
constitutes a "Registration Rights Agreement" as defined in the Arrangement Agreement;
|
(p) |
"Shareholder Pro Rata Interest" means, as at any date, the
aggregate interest of the Shareholder and its Affiliates calculated as that fraction, expressed as a percentage:
|
|
(i) |
the numerator of which shall be the number of Common Shares which the Shareholder beneficially owns or controls or directs at the relevant date, and
|
|
(ii) |
the denominator of which shall be the then-outstanding Common Shares;
|
(q) |
"Standstill Agreements" means the standstill agreements entered
into between the Supporting Husky Shareholders and the Corporation, dated as of October 24, 2020;
|
(r) |
"Supporting Husky Shareholders" means Hutchison Whampoa Europe
Investments S.à r.l. and L.F. Investments S.à r.l.; and
|
(s) |
"Transfer Restrictions" means any restrictions or conditions on
the transfer of Common Shares by the Shareholder pursuant to any Applicable Securities Laws, any order or requirement of a Governmental Authority, or any written agreement between the Shareholder and the Corporation;
|
(a) |
If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favouring or disfavouring any Party because of the authorship of any provision of this Agreement.
|
(b) |
Where this Agreement states that a Party "will", "must" or "shall" perform in some manner
or otherwise act or omit to act, it means that such Party is legally obligated to do so in accordance with this Agreement.
|
(c) |
The terms "hereof", "herein", "hereunder", "hereto" and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof and include any agreement supplemental hereto. Unless something in
the subject matter or context is inconsistent therewith, references herein to Articles, Sections, subsections, paragraphs and subparagraphs are to Articles, Sections, subsections, paragraphs and subparagraphs of this Agreement.
|
(d) |
For the purposes of this Agreement, the term "then-outstanding Common
Shares" shall mean the actual number of outstanding Common Shares at any such time.
|
(a) |
Subject to Section 2.3, if the Corporation proposes to issue or sell (each, an "Offering") any Common Shares or Convertible Securities (collectively, "Subject Securities"), then the Shareholder shall be
entitled and have the right and option (but shall not be required) to concurrently purchase or acquire up to such number of Subject Securities as would allow the Shareholder to maintain its Shareholder Pro Rata Interest in the
then-outstanding Common Shares at the level of its Shareholder Pro Rata Interest immediately prior to such Offering (the "Pre-emptive Right")
(after giving effect to any Subject Securities acquired by the Shareholder as part of the Offering and, solely for purposes of calculating the Shareholder Pro Rata Interest in this Section 2.1(a), in the event the Subject Securities subject
to the Pre-emptive Right are Convertible Securities, the number of Common Shares underlying such Convertible Securities issued or to be issued pursuant to such Offering shall be included in the then-outstanding Common Shares).
|
(b) |
The purchase by the Shareholder of any such Subject Securities shall be at the same price per Subject Security and otherwise be on economic terms and conditions that
are no less favourable, individually or in the aggregate, to the Shareholder than the terms and conditions are to any purchaser in such Offering.
|
(c) |
For greater certainty, no Subject Securities will be issued or sold by the Corporation at any time after the date hereof except in compliance with this Article 2.
|
(a) |
Subject to Section 2.2(c), the Corporation shall use commercially reasonable efforts to provide the Shareholder with written notice of any Offering no later than five
(5) Business Days (or, in the case of a Bought Deal, the Corporation shall have provided such notice to the Shareholder as promptly as practicable in the circumstances having regard to the time periods typical for a transaction of such
nature, but in no case less than two (2) Business Days) prior to the public announcement of
|
|
(i) |
The Offer Notice shall state that the Corporation is proposing to issue Subject Securities and shall set out the material terms of the proposed Offering, including (A)
the proposed number and terms of the Subject Securities to be issued or sold, (B) the purchase price thereof, (C) the proposed closing date for the issuance of Subject Securities to the Shareholder, assuming exercise of the Pre-emptive Right
by the Shareholder, which closing date shall be: (x) in the case of a Bought Deal, the closing date of the Bought Deal financing; (y) in any other case, at least ten (10) Business Days following the date on which the Shareholder receives such
Offer Notice; or (z) such other date as the Parties may agree, and (D) any other material terms and conditions of such Offering. In the event that the Offer Notice is being delivered in connection with a proposed best-efforts or fully
underwritten public offering through an agent or underwriter, the Offer Notice may state that the actual price per Subject Security being offered by the Corporation shall be the offering price to be agreed upon by the Corporation in the
agency agreement, bid letter or underwriting agreement, as the case may be, relating to the Offering.
|
|
(ii) |
The Offer Notice shall specify a deadline by which the Shareholder must deliver to the Corporation a written notice (the "Notice of Exercise") of its election to purchase all or any portion of the Subject Securities to which it is entitled to pursuant to the Pre-emptive Right. The Shareholder shall
be deemed to have declined and to have waived its rights to acquire any Subject Securities under Section 2.1 if it does not deliver a Notice of Exercise by such deadline. Such deadline shall be no earlier than five (5) Business Days (or, in
the case of a Bought Deal, no earlier than two (2) Business Days) after the Shareholder receives or is deemed to receive the Offer Notice in accordance with the terms hereof. If the Offer Notice is delivered in connection with a proposed
best-efforts or fully underwritten public offering through an agent or underwriter, the Shareholder shall specify the maximum price or a range of prices per Subject Security at which the Shareholder will exercise its right to subscribe for or
purchase Subject Securities pursuant to its Pre-emptive Right (provided that the Notice of Exercise may specify more than one maximum price per Subject Security together with the corresponding maximum number of Subject Securities to be
subscribed for or purchased at each such maximum price).
|
|
(iii) |
If the Shareholder delivers a Notice of Exercise stating that it wishes to purchase Subject Securities pursuant to the Offering, the Corporation shall, subject to
Section 2.2(b), be obligated to sell and issue to the Shareholder, and the Shareholder shall be obligated to purchase from the Corporation, that number of Subject Securities specified by the Shareholder in the Notice of Exercise concurrently
with the completion of the Offering.
|
|
(iv) |
If the Shareholder does not deliver a Notice of Exercise in accordance with this Agreement, the Corporation shall be entitled within a period of 45 calendar days
following the deadline to receive a Notice of Exercise to complete the proposed Offering on the terms and conditions contained in the Offer Notice. If no such Offering is completed within such 45 calendar day period, the Corporation will be
required to again comply with the provisions of this Section 2.2(a).
|
|
(v) |
The election by the Shareholder not to exercise its Pre-emptive Right in any one instance shall not affect its right as to any subsequent proposed Offering.
|
(b) |
If, following delivery of an Offer Notice in respect of an Offering pursuant to this Section 2.2, fewer Subject Securities are issued or sold pursuant to such Offering
than were specified in such Offer Notice:
|
|
(i) |
the Corporation will not be required to send an amended Offer Notice to the Shareholder prior to completing such Offering; and
|
|
(ii) |
the Corporation may, at its option, elect to reduce the allocation of Subject Securities to be issued to the Shareholder on closing of such Offering to such number of
Subject Securities that would allow the Shareholder to maintain its Shareholder Pro Rata Interest in the then-outstanding Common Shares at the level of its Shareholder Pro Rata Interest immediately prior to such Offering, calculated in
accordance with Section 2.1.
|
(c) |
If: (i) the Corporation does not deliver an Offer Notice to the Shareholder in advance of an Offering as contemplated in Section 2.2(a); (ii) the Corporation has used
its commercially reasonable efforts to obtain a waiver or consent in order to provide such Offer Notice but the Corporation is nevertheless not permitted to provide such Offer Notice due to a confidentiality or similar agreement; or (iii)
the Corporation has used its commercially reasonable efforts to deliver an Offer Notice but it is impracticable for the Corporation to do so, the Corporation shall: (A) when no longer prohibited, promptly notify the Shareholder of such fact;
and (B) at the option of the Shareholder, use its commercially reasonable efforts to, as soon as reasonably practicable following such Offering, complete a follow-on issue or sale (a "Follow-On Offering") of the Subject Securities issued or sold pursuant to such Offering in order for the Shareholder to purchase from the Corporation at the same price per Subject Security
and otherwise be on economic terms and conditions that are no less favourable, individually or in the aggregate, to the Shareholder than the terms and conditions are to any purchaser in such Offering up to such number of Subject Securities as
would allow the Shareholder to maintain its Shareholder Pro Rata Interest in the then-outstanding Common Shares at the level of its Shareholder Pro Rata Interest immediately prior to such Offering (after giving effect to any Common Shares or
Convertible Securities acquired by the Shareholder as part of such Follow-On Offering and, solely for purposes of calculating the Shareholder Pro Rata Interest in this Section 2.2(c), the number of Common Shares underlying Convertible
Securities issued or to be issued pursuant to such Follow-On Offering shall be included in the then-outstanding Common Shares). Any securities issued pursuant to a Follow-On Offering shall, for the purposes of this Agreement and any
Registration Rights Agreement be deemed to have been issued pursuant to a Pre-emptive Right.
|
(a) |
any Subject Securities that are to be issued or sold for purposes of director, officer, employee or consultant incentive plans, employee share ownership programs or
similar plans or programs, in each case, that have been approved by the board of directors of the Corporation, including the issuance of any Common Shares on the exercise, conversion or settlement of such Subject Securities;
|
(b) |
any Subject Securities that are to be issued in connection with a dividend reinvestment plan of the Corporation in effect from time to time;
|
(c) |
any Subject Securities that are to be issued or sold to satisfy existing instruments issued by the Corporation or its Affiliates as of the date of this Agreement
(including for greater certainty, the Shareholder Rights Plan of the Corporation in effect from time to time);
|
(d) |
any Subject Securities that are to be issued or sold upon the exercise, exchange or conversion of any Offering Convertible Securities; or
|
(e) |
any Subject Securities that are to be issued or sold to any third party seller pursuant to any corporate transaction, such as a merger, amalgamation, arrangement or
take-over bid, or share or asset purchase, or similar transactions, where Subject Securities are used to fund all or a portion of the applicable transaction price.
|
(a) |
it has the requisite corporate power and capacity to enter into and deliver this Agreement and to perform its obligations hereunder;
|
(b) |
all necessary action has been taken by or on behalf of the Corporation to authorize the execution, delivery and performance of this Agreement, and this Agreement has
been duly authorized, executed and delivered by the Corporation and constitutes a valid and legally binding obligation of the Corporation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization and other laws of general application limiting the enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court; and
|
(c) |
neither the entering into nor the delivery of this Agreement by the Corporation nor the performance by the Corporation of its obligations hereunder will result in any
breach 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: (i) any provisions of the articles or by-laws or other constating
|
(a) |
it has the requisite corporate power and capacity to enter into and deliver this Agreement and to perform its obligations hereunder;
|
(b) |
all necessary action has been taken by or on behalf of it to authorize the execution, delivery and performance of this Agreement, and this Agreement has been duly
authorized, executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general
application limiting the enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court; and
|
(c) |
neither the entering into nor the delivery of this Agreement by it nor the performance by it of its obligations hereunder will result in any breach 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: (i) any provisions of its articles, by-laws, partnership or trust agreement or other
constating documents, as applicable; (ii) any of the resolutions of its board of directors, general partner, trustee or similar body, or its securityholders, partners or beneficiaries, as applicable; (iii) any agreement or other instrument to
which it is a party or by which it is bound; or (iv) any applicable laws; and
|
(d) |
the Shareholder is a beneficial holder of more than 5% of the outstanding Common Shares.
|
(a) |
The Shareholder covenants to the Corporation that, upon the reasonable request by the Corporation in writing, it shall promptly provide the Corporation with evidence
satisfactory to the Corporation, acting reasonably, that the Shareholder beneficially holds more than 5% of the then-outstanding Common Shares.
|
(b) |
If the Shareholder elects to exercise the Pre-emptive Right in connection with an Offering, the Shareholder consents to the Corporation and/or its agents or
underwriters disclosing any such details in respect of the Shareholder and/or its participation in such Offering that are required to be disclosed under applicable law (including Applicable Securities Laws) in any materials, disclosure or
other offering documents prepared by the Corporation and/or its agents or underwriters in connection with the announcement, marketing or distribution of the Subject Securities pursuant to such Offering.
|
(a) |
this Agreement may be assigned in whole or in part by the Shareholder (upon notice to the Corporation) to any Affiliate of the Shareholder to whom any Common Shares are
transferred in compliance with any and all applicable Transfer Restrictions to which the transferring Party is subject. Upon the permitted transferee(s) or assignee(s) executing an instrument in writing agreeing to be bound by this Agreement,
the transferee(s) or assignee(s) will be entitled to its benefit and be bound by all of its terms as if it were an original signatory hereto and shall be considered the Shareholder for the purposes of this Agreement, provided that if any
Person who was a permitted transferee ceases to be an Affiliate of the Shareholder, such Person shall cease to have any rights or obligations under this Agreement; and
|
(b) |
in the event the Common Shares are converted, reclassified, exchanged or otherwise changed pursuant to a reorganization, amalgamation, merger, arrangement or other form
of business combination, this Agreement may be assigned in whole by the Corporation (and the Corporation covenants and agrees to use its commercially reasonable efforts to assign this Agreement) to its successor pursuant to, or in connection
with, any such transaction.
|
(a) |
11:59 p.m. (Calgary time) on the date that is 60 months following the date of this Agreement;
|
(b) |
the date on which this Agreement is terminated by the written agreement of the Parties;
|
(c) |
the first date on which the Shareholder ceases to, directly or indirectly, beneficially own, in aggregate, more than 5% of the then-outstanding Common Shares; and
|
(d) |
the date on which the Standstill Agreements are terminated.
|
(a) |
if to the Shareholder
|
(b) |
if to the Corporation:
|
CENOVUS ENERGY INC.
|
|||
By:
|
(signed) "Alex J. Pourbaix"
|
||
Name: Alex J. Pourbaix
Title: President & Chief Executive Officer
|
|||
By:
|
(signed) "Jonathan M. McKenzie"
|
||
Name: Jonathan M. McKenzie
Title: Executive Vice-President & Chief Financial Officer |
|||
HUTCHISON WHAMPOA EUROPE INVESTMENTS S.À R.L.
|
|||
By:
|
(signed) "Neil McGee"
|
||
Name: Neil McGee
Title: Manager
|
(a) |
"Affiliate" means as follows: a Person (first Person) is considered to be an Affiliate of another Person (second Person) if the first Person: (i)
Controls the second Person, or (ii) is Controlled by the second Person, or (iii) is Controlled by another Person that Controls, directly or indirectly, the second Person;
|
(b) |
"Applicable Securities Laws" means (i) collectively, the securities acts or similar statutes of each of the provinces and territories of Canada
and the respective rules and regulations under such laws,
|
(c) |
"Bought Deal" means a fully underwritten offering on a bought deal basis pursuant to which an underwriter has, or underwriters have, committed to
purchase Common Shares or Convertible Securities of the Corporation pursuant to a "bought deal" letter prior to the filing of a prospectus under applicable Canadian securities laws;
|
(d) |
"Business Day" means any day on which banks are generally open for the transaction of commercial business in Calgary, Alberta, but does not in
any event include a Saturday or Sunday or statutory holiday in Alberta;
|
(e) |
"Common Shares" means the common shares in the capital of the Corporation and includes any shares of the Corporation into which such common
shares may be converted, reclassified, subdivided, consolidated, exchanged or otherwise changed, whether pursuant to a reorganization, amalgamation, merger, arrangement or other form of reorganization;
|
(f) |
"Control" means as follows: a Person (first Person) is considered to Control another Person (second Person) if:
|
|
(i) |
the first Person beneficially owns, or controls or directs, securities of the second Person carrying votes which, if exercised, would entitle the first Person to elect a majority of the
directors of the second Person unless that first person holds the voting securities only to secure an obligation;
|
|
(ii) |
the second Person is a partnership, other than a limited partnership, and the first Person directly or indirectly holds more than 50% of the interests of the partnership; or
|
|
(iii) |
the second Person is a limited partnership and the first Person is the general partner of the limited partnership;
|
(g) |
"Convertible Securities" means any equity securities, rights, options, warrants or other convertible securities which in each case represent
rights to purchase Common Shares;
|
(h) |
"Exempt Issuances" means any issuance or sale of Subject Securities to which the Pre-emptive Right does not apply pursuant to paragraphs (a)-(d)
of Section 2.3;
|
(i) |
"Follow-On Offering" shall have the meaning set out in Section 2.2(c);
|
(j) |
"Governmental Authority" means any stock exchange or any court, tribunal or judicial or arbitral body or other governmental department,
regulatory agency or body, commission, board, bureau, agency, or instrumentality of Canada or the United States, or of any country, state, province, territory, county, municipality, city, town or other political jurisdiction, whether domestic
or foreign and whether now or in the future constituted or existing;
|
(k) |
"Offering" shall have the meaning set out in Section 2.1(a);
|
(l) |
"Offering Convertible Securities" means Convertible Securities issued or sold pursuant to an Offering so long as the Shareholder was provided an
Offer Notice in respect of such Offering or
|
(m) |
"Parties" means, the Corporation, the Shareholder and their respective successors and permitted assigns hereunder, and "Party" means any one of them;
|
(n) |
"Person" means any individual, partnership, limited partnership, limited liability partnership, limited or unlimited liability company or
corporation, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, unincorporated syndicate, unincorporated organization, trust, trustee, executor, administrator or
other legal personal representative or governmental authority or entity however designated or constituted;
|
(o) |
"Registration Rights Agreement" an agreement with any Person that constitutes a "Registration Rights Agreement" as defined in the Arrangement
Agreement;
|
(p) |
"Shareholder Pro Rata Interest" means, as at any date, the aggregate interest of the Shareholder and its Affiliates calculated as that fraction,
expressed as a percentage:
|
|
(i) |
the numerator of which shall be the number of Common Shares which the Shareholder beneficially owns or controls or directs at the relevant date, and
|
|
(ii) |
the denominator of which shall be the then-outstanding Common Shares;
|
(q) |
"Standstill Agreements" means the standstill agreements entered into between the Supporting Husky Shareholders and the Corporation, dated as of
October 24, 2020;
|
(r) |
"Supporting Husky Shareholders" means Hutchison Whampoa Europe Investments S.à r.l. and L.F. Investments S.à r.l.; and
|
(s) |
"Transfer Restrictions" means any restrictions or conditions on the transfer of Common Shares by the Shareholder pursuant to any Applicable
Securities Laws, any order or requirement of a Governmental Authority, or any written agreement between the Shareholder and the Corporation;
|
(a) |
If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise
favouring or disfavouring any Party because of the authorship of any provision of this Agreement.
|
(b) |
Where this Agreement states that a Party "will", "must" or "shall"
perform in some manner or otherwise act or omit to act, it means that such Party is legally obligated to do so in accordance with this Agreement.
|
(c) |
The terms "hereof", "herein", "hereunder", "hereto" and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof and include any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent
|
(d) |
For the purposes of this Agreement, the term "then-outstanding Common Shares" shall mean the actual number of outstanding Common Shares at any
such time.
|
(a) |
Subject to Section 2.3, if the Corporation proposes to issue or sell (each, an "Offering") any Common Shares or Convertible Securities
(collectively, "Subject Securities"), then the Shareholder shall be entitled and have the right and option (but shall not be required) to concurrently purchase or acquire up to such number of Subject
Securities as would allow the Shareholder to maintain its Shareholder Pro Rata Interest in the then-outstanding Common Shares at the level of its Shareholder Pro Rata Interest immediately prior to such Offering (the "Pre-emptive Right") (after giving effect to any Subject Securities acquired by the Shareholder as part of the Offering and, solely for purposes of calculating the Shareholder Pro Rata Interest in this Section 2.1(a), in the
event the Subject Securities subject to the Pre-emptive Right are Convertible Securities, the number of Common Shares underlying such Convertible Securities issued or to be issued pursuant to such Offering shall be included in the
then-outstanding Common Shares).
|
(b) |
The purchase by the Shareholder of any such Subject Securities shall be at the same price per Subject Security and otherwise be on economic terms and conditions that are no less
favourable, individually or in the aggregate, to the Shareholder than the terms and conditions are to any purchaser in such Offering.
|
(c) |
For greater certainty, no Subject Securities will be issued or sold by the Corporation at any time after the date hereof except in compliance with this Article 2.
|
(a) |
Subject to Section 2.2(c), the Corporation shall use commercially reasonable efforts to provide the Shareholder with written notice of any Offering no later than five (5) Business Days
(or, in the case of a Bought Deal, the Corporation shall have provided such notice to the Shareholder as promptly as practicable in the circumstances having regard to the time periods typical for a transaction of such nature, but in no case
less than two (2) Business Days) prior to the public announcement of the Offering (or, if no announcement, in any event no later than ten (10) Business Days prior to the consummation of such Offering) (the "Offer
Notice").
|
|
(i) |
The Offer Notice shall state that the Corporation is proposing to issue Subject Securities and shall set out the material terms of the proposed Offering, including (A) the proposed
|
|
(ii) |
The Offer Notice shall specify a deadline by which the Shareholder must deliver to the Corporation a written notice (the "Notice of Exercise") of
its election to purchase all or any portion of the Subject Securities to which it is entitled to pursuant to the Pre-emptive Right. The Shareholder shall be deemed to have declined and to have waived its rights to acquire any Subject
Securities under Section 2.1 if it does not deliver a Notice of Exercise by such deadline. Such deadline shall be no earlier than five (5) Business Days (or, in the case of a Bought Deal, no earlier than two (2) Business Days) after the
Shareholder receives or is deemed to receive the Offer Notice in accordance with the terms hereof. If the Offer Notice is delivered in connection with a proposed best-efforts or fully underwritten public offering through an agent or
underwriter, the Shareholder shall specify the maximum price or a range of prices per Subject Security at which the Shareholder will exercise its right to subscribe for or purchase Subject Securities pursuant to its Pre-emptive Right
(provided that the Notice of Exercise may specify more than one maximum price per Subject Security together with the corresponding maximum number of Subject Securities to be subscribed for or purchased at each such maximum price).
|
|
(iii) |
If the Shareholder delivers a Notice of Exercise stating that it wishes to purchase Subject Securities pursuant to the Offering, the Corporation shall, subject to Section 2.2(b), be
obligated to sell and issue to the Shareholder, and the Shareholder shall be obligated to purchase from the Corporation, that number of Subject Securities specified by the Shareholder in the Notice of Exercise concurrently with the completion
of the Offering.
|
|
(iv) |
If the Shareholder does not deliver a Notice of Exercise in accordance with this Agreement, the Corporation shall be entitled within a period of 45 calendar days following the deadline
to receive a Notice of Exercise to complete the proposed Offering on the terms and conditions contained in the Offer Notice. If no such Offering is completed within such 45 calendar day period, the Corporation will be required to again comply
with the provisions of this Section 2.2(a).
|
|
(v) |
The election by the Shareholder not to exercise its Pre-emptive Right in any one instance shall not affect its right as to any subsequent proposed Offering.
|
(b) |
If, following delivery of an Offer Notice in respect of an Offering pursuant to this Section 2.2, fewer Subject Securities are issued or sold pursuant to such Offering than were
specified in such Offer Notice:
|
|
(i) |
the Corporation will not be required to send an amended Offer Notice to the Shareholder prior to completing such Offering; and
|
|
(ii) |
the Corporation may, at its option, elect to reduce the allocation of Subject Securities to be issued to the Shareholder on closing of such Offering to such number of Subject Securities
that would allow the Shareholder to maintain its Shareholder Pro Rata Interest in the then-outstanding Common Shares at the level of its Shareholder Pro Rata Interest immediately prior to such Offering, calculated in accordance with Section
2.1.
|
(c) |
If: (i) the Corporation does not deliver an Offer Notice to the Shareholder in advance of an Offering as contemplated in Section 2.2(a); (ii) the Corporation has used its commercially
reasonable efforts to obtain a waiver or consent in order to provide such Offer Notice but the Corporation is nevertheless not permitted to provide such Offer Notice due to a confidentiality or similar agreement; or (iii) the Corporation has
used its commercially reasonable efforts to deliver an Offer Notice but it is impracticable for the Corporation to do so, the Corporation shall: (A) when no longer prohibited, promptly notify the Shareholder of such fact; and (B) at the
option of the Shareholder, use its commercially reasonable efforts to, as soon as reasonably practicable following such Offering, complete a follow-on issue or sale (a "Follow-On Offering") of the
Subject Securities issued or sold pursuant to such Offering in order for the Shareholder to purchase from the Corporation at the same price per Subject Security and otherwise be on economic terms and conditions that are no less favourable,
individually or in the aggregate, to the Shareholder than the terms and conditions are to any purchaser in such Offering up to such number of Subject Securities as would allow the Shareholder to maintain its Shareholder Pro Rata Interest in
the then-outstanding Common Shares at the level of its Shareholder Pro Rata Interest immediately prior to such Offering (after giving effect to any Common Shares or Convertible Securities acquired by the Shareholder as part of such Follow-On
Offering and, solely for purposes of calculating the Shareholder Pro Rata Interest in this Section 2.2(c), the number of Common Shares underlying Convertible Securities issued or to be issued pursuant to such Follow-On Offering shall be
included in the then-outstanding Common Shares). Any securities issued pursuant to a Follow-On Offering shall, for the purposes of this Agreement and any Registration Rights Agreement be deemed to have been issued pursuant to a Pre-emptive
Right.
|
(a) |
any Subject Securities that are to be issued or sold for purposes of director, officer, employee or consultant incentive plans, employee share ownership programs or similar plans or
programs, in each case, that have been approved by the board of directors of the Corporation, including the issuance of any Common Shares on the exercise, conversion or settlement of such Subject Securities;
|
(b) |
any Subject Securities that are to be issued in connection with a dividend reinvestment plan of the Corporation in effect from time to time;
|
(c) |
any Subject Securities that are to be issued or sold to satisfy existing instruments issued by the Corporation or its Affiliates as of the date of this Agreement (including for greater
certainty, the Shareholder Rights Plan of the Corporation in effect from time to time);
|
(d) |
any Subject Securities that are to be issued or sold upon the exercise, exchange or conversion of any Offering Convertible Securities; or
|
(e) |
any Subject Securities that are to be issued or sold to any third party seller pursuant to any corporate transaction, such as a merger, amalgamation, arrangement or take-over bid, or
share or asset
|
(a) |
it has the requisite corporate power and capacity to enter into and deliver this Agreement and to perform its obligations hereunder;
|
(b) |
all necessary action has been taken by or on behalf of the Corporation to authorize the execution, delivery and performance of this Agreement, and this Agreement has been duly
authorized, executed and delivered by the Corporation and constitutes a valid and legally binding obligation of the Corporation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization
and other laws of general application limiting the enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court; and
|
(c) |
neither the entering into nor the delivery of this Agreement by the Corporation nor the performance by the Corporation of its obligations hereunder will result in any breach 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: (i) any provisions of the articles or by-laws or other constating documents of the
Corporation; (ii) any of the resolutions of the board of directors of the Corporation or the shareholders of the Corporation; (iii) any agreement or other instrument to which the Corporation is a party or by which it is bound; or (iv) any
applicable laws.
|
(a) |
it has the requisite corporate power and capacity to enter into and deliver this Agreement and to perform its obligations hereunder;
|
(b) |
all necessary action has been taken by or on behalf of it to authorize the execution, delivery and performance of this Agreement, and this Agreement has been duly authorized, executed
and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting
the enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court; and
|
(c) |
neither the entering into nor the delivery of this Agreement by it nor the performance by it of its obligations hereunder will result in any breach 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: (i) any provisions of its articles, by-laws, partnership or trust agreement or other constating documents,
as applicable; (ii) any of the resolutions of its board of directors, general partner, trustee or similar body, or its securityholders, partners or beneficiaries, as applicable; (iii) any agreement or other instrument to which it is a party
or by which it is bound; or (iv) any applicable laws; and
|
(d) |
the Shareholder is a beneficial holder of more than 5% of the outstanding Common Shares.
|
(a) |
The Shareholder covenants to the Corporation that, upon the reasonable request by the Corporation in writing, it shall promptly provide the Corporation with evidence satisfactory to the
Corporation, acting reasonably, that the Shareholder beneficially holds more than 5% of the then-outstanding Common Shares.
|
(b) |
If the Shareholder elects to exercise the Pre-emptive Right in connection with an Offering, the Shareholder consents to the Corporation and/or its agents or underwriters disclosing any
such details in respect of the Shareholder and/or its participation in such Offering that are required to be disclosed under applicable law (including Applicable Securities Laws) in any materials, disclosure or other offering documents
prepared by the Corporation and/or its agents or underwriters in connection with the announcement, marketing or distribution of the Subject Securities pursuant to such Offering.
|
(a) |
this Agreement may be assigned in whole or in part by the Shareholder (upon notice to the Corporation) to any Affiliate of the Shareholder to whom any Common Shares are transferred in
compliance with any and all applicable Transfer Restrictions to which the transferring Party is subject. Upon the permitted transferee(s) or assignee(s) executing an instrument in writing agreeing to be bound by this Agreement, the
transferee(s) or assignee(s) will be entitled to its benefit and be bound by all of its terms as if it were an original signatory hereto and shall be considered the Shareholder for the purposes of this Agreement, provided that if any Person
who was a permitted transferee ceases to be an Affiliate of the Shareholder, such Person shall cease to have any rights or obligations under this Agreement; and
|
(b) |
in the event the Common Shares are converted, reclassified, exchanged or otherwise changed pursuant to a reorganization, amalgamation, merger, arrangement or other form of business
combination, this Agreement may be assigned in whole by the Corporation (and the Corporation covenants and agrees to use its commercially reasonable efforts to assign this Agreement) to its successor pursuant to, or in connection with, any
such transaction.
|
(a) |
11:59 p.m. (Calgary time) on the date that is 60 months following the date of this Agreement;
|
(b) |
the date on which this Agreement is terminated by the written agreement of the Parties;
|
(c) |
the first date on which the Shareholder ceases to, directly or indirectly, beneficially own, in aggregate, more than 5% of the then-outstanding Common Shares; and
|
(d) |
the date on which the Standstill Agreements are terminated.
|
(a) |
if to the Shareholder
|
(b) |
if to the Corporation:
|
1.1 |
Definitions
|
|
(a) |
"Affiliate" means as follows: a Person (first Person) is considered to be an Affiliate of another Person (second Person) if the first Person: (i) Controls the second Person, or (ii) is Controlled
by the second Person, or (iii) is Controlled by another Person that Controls, directly or indirectly, the second Person;
|
|
(b) |
"Agreement" means this registration rights agreement, as amended, restated or modified from time to time;
|
|
(c) |
"Applicable Securities Laws" means, collectively, (i) the securities legislation of each of the provinces and territories of Canada, and all rules, regulations, blanket orders, instruments and
policies established thereunder or issued by the Canadian Securities Regulatory Authorities, and including the rules and policies of the Toronto Stock Exchange, all as amended from time to time, and (ii) the U.S. Securities Act, the U.S.
Exchange Act and all applicable state securities legislation of any state in the United States, in each case with all rules, regulations and orders promulgated thereunder, and including the rules of the New York Stock Exchange, all as
amended from time to time; and in all cases as are applicable to the relevant Person at the applicable time;
|
|
(d) |
"Arrangement" has the meaning ascribed thereto in the recitals;
|
|
(e) |
"Base Prospectus" shall have the meaning set out in Section 2.1;
|
|
(f) |
"Blackout Period" means:
|
|
(i) |
the Corporation's regular annual and quarterly blackout periods as provided in the Disclosure Policy, which currently begin on the fourteenth day before the proposed release of the year‑end or fiscal quarter financial results or budget
information and end two full trading days after financial results or budget information are publicly disclosed; and
|
|
(ii) |
any other bona fide blackout periods designated by the Committee pursuant to and in conformity with the Disclosure Policy,
|
|
(g) |
"Board of Directors" or "Board" means the board of directors of the Corporation;
|
|
(h) |
"Business Day" means any day on which banks are generally open for the transaction of commercial business in Calgary, Alberta, but does not in any event include a Saturday or Sunday or statutory
holiday in Alberta;
|
|
(i) |
"Canadian Base Prospectus" shall have the meaning set out in Section 2.1;
|
|
(j) |
"Canadian Securities Regulatory Authorities" means the securities regulatory authorities in each of the provinces and territories of Canada;
|
|
(k) |
"Committee" means the Corporation's disclosure committee established by the Board to oversee the Corporation's disclosure policy practices, as described in the Disclosure Policy;
|
|
(l) |
"Common Shares" means the common shares in the capital of the Corporation and includes any shares of the Corporation into which such shares may be converted, reclassified, subdivided,
consolidated, exchanged or otherwise changed, whether pursuant to a reorganization, amalgamation, merger, arrangement or other form of reorganization;
|
|
(m) |
"Control" means as follows: a Person (first Person) is considered to Control another Person (second Person) if:
|
|
(i) |
the first Person beneficially owns, or controls or directs, securities of the second Person carrying votes which, if exercised, would entitle the first Person to elect a majority of the directors (or the equivalent) of the second Person
unless that first person holds the voting securities only to secure an obligation;
|
|
(ii) |
the second Person is a partnership, other than a limited partnership, and the first Person directly or indirectly holds more than 50% of the interests of the partnership; or
|
|
(iii) |
the second Person is a limited partnership and the first Person is the general partner of the limited partnership;
|
|
(n) |
"Corporation" means Cenovus Energy Inc. and any corporation resulting from the amalgamation, combination or merger of Cenovus Energy Inc. with another corporation or other corporations, any
purchaser of all or substantially all of the assets of Cenovus Energy Inc., and any entity into which Cenovus Energy Inc. converts;
|
|
(o) |
"Corresponding RRA" means an agreement in the form of this Agreement with any Person that constitutes a "Registration Rights Agreement" as defined in the Arrangement Agreement;
|
|
(p) |
"Demand Holder" shall have the meaning set out in subsection 2.2(a);
|
|
(q) |
"Demand Registrable Securities" shall have the meaning set out in subsection 2.2(a);
|
|
(r) |
"Demand Registration" shall have the meaning set out in subsection 2.2(a);
|
|
(s) |
"Designated Registrable Securities" means Demand Registrable Securities or Piggy Back Registrable Securities, as the case may be;
|
|
(t) |
"Disclosure Policy" means the Corporation's Policy on Disclosure, Confidentiality and Employee Trading dated December 1, 2015, as such policy may be amended, supplemented or replaced from time to
time;
|
|
(u) |
"Distribution Period" shall have the meaning set out in subsection 3.1(d);
|
|
(v) |
"Existing RRA" means that certain Registration Rights Agreement dated as of May 17, 2017 between the Corporation and ConocoPhillips Company, as in effect on the date of the Arrangement Agreement;
|
|
(w) |
"Governmental Authority" means any stock exchange or any court, tribunal or judicial or arbitral body or other governmental department, regulatory agency or body, commission, board, bureau,
agency, or instrumentality of Canada or the United States, or
|
|
|
of any country, state, province, territory, county, municipality, city, town or other political jurisdiction, whether domestic or foreign and whether now or in the future constituted or existing;
|
|
(x) |
"Holder" means: (i) as of the date hereof, the Shareholder; and (ii) at any time after the date hereof, the Shareholder and any Affiliate to which the Shareholder (or a permitted transferee
thereof) has transferred Registrable Securities in compliance with any and all applicable Transfer Restrictions and assigned this Agreement in accordance with Section 5.3;
|
|
(y) |
"misrepresentation" means (i) an untrue statement of material fact, or (ii) an omission to state a material fact that is required to be stated or that is necessary to make a statement not
misleading;
|
|
(z) |
"Non‑Base Prospectus" means a Canadian Prospectus on Form 44‑101F1 pursuant to National Instrument 44‑101 ‑ Short Form Prospectus Distributions, or in the
event the Corporation is no longer eligible to use Form 44‑101F1, Form 41‑101F1 pursuant to National Instrument 41‑101 ‑ General Prospectus Requirements and/or a Registration Statement under the
U.S. Securities Act on Form F‑10 or such successor form or, if the Corporation is no longer eligible to use Form F‑10 or such successor form, such other form as the Corporation shall be eligible to use to register the Registrable
Securities;
|
|
(aa) |
"Parties" means, the Corporation, each Holder and their respective successors and permitted assigns hereunder, and "Party" means any one of them;
|
|
(bb) |
"Person" means any individual, partnership, limited partnership, limited liability partnership, limited or unlimited liability company or corporation, joint venture, syndicate, sole proprietorship,
company or corporation with or without share capital, unincorporated association, unincorporated syndicate, unincorporated organization, trust, trustee, executor, administrator or other legal personal representative or Governmental
Authority or entity, however designated or constituted;
|
|
(cc) |
"Piggy Back Registrable Securities" shall have the meaning set out in subsection 2.2(f);
|
|
(dd) |
"Piggy Back Registration" shall have the meaning set out in subsection 2.2(f);
|
|
(ee) |
"Pre-emptive Right" has the meaning given to it in the Pre-Emptive Rights Agreement;
|
|
(ff) |
"Pre-Emptive Rights Agreement" means the pre-emptive rights agreement to be entered into between the Shareholder and the Corporation on the date hereof;
|
|
(gg) |
"Proposed Prospectus Filing Date" means the date on which the Corporation plans, or the Demand Holder requests, as applicable, for such distribution to file a Prospectus Supplement;
|
|
(hh) |
"Prospectus" means, collectively, a Base Prospectus and a Prospectus Supplement to such Base Prospectus;
|
|
(ii) |
"Prospectus Supplement" means, as applicable, a prospectus supplement to the Canadian Base Prospectus, a supplement to the prospectus contained in the Registration Statement
|
|
|
and/or an amendment to the Registration Statement containing a prospectus supplement, in each case relating to the distribution of Registrable Securities;
|
|
(jj) |
"Registrable Securities" means: (i) the 316,927,050 Common Shares beneficially owned by the Shareholder on the date hereof, including for certainty all Common Shares issued to the Shareholder
pursuant to the Arrangement, and which may be held by other Holders upon a transfer of such Common Shares and corresponding assignment of this Agreement to other Holders in accordance with Section 5.3; (ii) any Common Shares that may be
acquired by a Holder pursuant to an exercise of Warrants distributed to the Shareholder pursuant to the Arrangement; (iii) any Common Shares that may be acquired by a Holder pursuant to a Pre-emptive Right or any Common Shares that may be
acquired by a Holder pursuant to an exercise of Convertible Securities (as defined in the Pre-Emptive Rights Agreement) acquired by a Holder pursuant to a Pre-emptive Right; (iv) any Common Shares or other securities of the Corporation
issued as a dividend, distribution, exchange, share split, recapitalization, or other corporate event in respect of such Common Shares or Warrants; and (v) any Warrants, if and only if, such number of Warrants is less than or equal to the
number of other Registrable Securities under (i)-(iv) above proposed to be included in the Secondary Registration;
|
|
(kk) |
"Registration" means the qualification or registration, as applicable, of securities (or the distributions thereof) under Applicable Securities Laws so as to permit the distribution of such
securities to the public in any or all of the provinces and territories of Canada and in the United States, in each case subject to the limitations contained herein;
|
|
(ll) |
"Registration Expenses" means the expenses incurred in connection with the distribution of the Registrable Securities pursuant to this Agreement comprised of:
|
|
(i) |
all fees, disbursements and expenses payable to not more than one Canadian and one U.S. counsel to the Holders (on an aggregate basis);
|
|
(ii) |
all fees, disbursements and expenses of counsel and auditors to the Corporation;
|
|
(iii) |
all expenses in connection with the preparation, translation, printing and filing of any preliminary prospectus, prospectus, prospectus supplement, registration statement, including the Prospectus, the Prospectus Supplement and the
Registration Statement, or any other offering document and any amendments and supplements thereto and the mailing and delivering of copies thereof to any underwriters and dealers;
|
|
(iv) |
all registration and filing fees of any Canadian Securities Regulatory Authority, of the SEC and of any other Governmental Authority, including FINRA filing fees;
|
|
(v) |
all transfer agents', depositaries' and registrars' fees;
|
|
(vi) |
all expenses relating to the preparation of certificates;
|
|
(vii) |
all fees and expenses of any securities exchange on which the Common Shares are then listed;
|
|
(viii) |
all fees and expenses of printing and producing any agreements among underwriters, underwriting agreements, "blue sky" or legal investment
|
|
|
memoranda, and any selling agreements or other documents in connection with the sale of Registrable Securities;
|
|
(ix) |
all expenses of the Corporation relating to any analyst or investor presentations and any marketing activities and all travel and lodging expenses of the Corporation in connection with such presentations and marketing activities; and
|
|
(x) |
any fees and expenses of the underwriters, other than Selling Expenses, customarily paid by issuers or sellers of securities, but shall not include any Selling Expenses;
|
|
(mm) |
"Registration Statement" shall have the meaning set out in Section 2.1;
|
|
(nn) |
"Registration Year" means each consecutive 365-day period during the term of this Agreement, with the first Registration Year commencing on the date hereof;
|
|
(oo) |
"Representatives" means, with respect to any Person, any of such Person's directors, officers, employees, consultants, advisors, agents or other Person acting on behalf of the first Person;
|
|
(pp) |
"SEC" means the United States Securities and Exchange Commission;
|
|
(qq) |
"Secondary Registration" means a Piggy Back Registration or a Demand Registration, as the case may be;
|
|
(rr) |
"Selling Expenses" means any fees or commissions payable, or discounts granted, to an underwriter, investment banker, manager or agent in connection with the distribution of the Registrable
Securities or other Common Shares pursuant to this Agreement and any transfer taxes attributable to a sale of Registrable Securities or other Common Shares pursuant to this Agreement;
|
|
(ss) |
"Standstill Agreements" means the standstill agreements entered into between the Supporting Husky Shareholders and the Corporation, dated as of October 24, 2020;
|
|
(tt) |
"Supporting Husky Shareholders" means Hutchison Whampoa Europe Investments S.à r.l. and L.F. Investments S.à r.l.;
|
|
(uu) |
"Transfer Restrictions" means any restrictions or conditions on the transfer of Registrable Securities by a Holder pursuant to any Applicable Securities Laws, any order or requirement of a
Governmental Authority, or any agreement between the Holder and the Corporation;
|
|
(vv) |
"U.S. Exchange Act" means the United States Securities Exchange Act of 1934, as amended, and all rules, regulations and orders promulgated thereunder;
|
|
(ww) |
"U.S. Securities Act" means the United States Securities Act of 1933, as amended, and all rules, regulations and orders promulgated thereunder;
|
|
(xx) |
"United States" or "U.S." means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia;
and
|
|
(yy) |
"Warrants" means the share purchase warrants of the Corporation issued on the date hereof pursuant to the Arrangement, each having an exercise price of $6.54 and a five-year term (subject to
adjustment in certain circumstances).
|
1.2 |
Headings for Reference Only
|
1.3 |
Construction and Interpretation
|
1.4 |
Date for Any Action
|
1.5 |
Currency
|
2.1 |
Filing and Maintenance of Base Prospectus
|
|
(a) |
At all times after the date that is 18 months after the Effective Date, the Corporation shall maintain a short form base shelf prospectus (the "Canadian Base Prospectus") filed with the Canadian
Securities Regulatory Authorities and a registration statement on Form F‑10 or such successor form or, if the Corporation is no longer eligible to use Form F‑10 or such successor form, such other form as the Corporation shall be eligible to
use to register the Registrable Securities (the "Registration Statement" and collectively with the Canadian Base Prospectus, the "Base Prospectus"), containing
a base shelf prospectus filed with the SEC qualifying the Registrable Securities for distribution under Applicable Securities Laws. The Corporation shall cause the Base Prospectus to contain a plan of distribution consistent with the terms
of this Agreement and approved in advance by the Holders acting reasonably.
|
|
(b) |
In the event that the Base Prospectus is not effective or required under Section 2.1(a) at any time during the term of this Agreement, the rights and obligations contained herein shall apply to a Non-Base Prospectus and all references in
this Agreement to Prospectus Supplement shall apply mutatis mutandis to a Non-Base Prospectus.
|
2.2 |
Required Registration
|
|
(a) |
Subject to the provisions hereof, at any time and from time to time during the term of this Agreement, one or more Holders (each such Holder, a "Demand Holder") may request the Corporation to file
a Prospectus Supplement offering all or part of the Registrable Securities (such offering being hereinafter referred to as a "Demand Registration"). Such a request shall be in writing and shall
specify the Proposed Prospectus Filing Date, number of Registrable Securities to be sold (the "Demand Registrable Securities"), the intended method of disposition and the jurisdictions in which the
Demand Holders, acting reasonably, request that the Demand Registration be effected and contain the undertaking of the Demand Holders making the request to provide all such information regarding such Demand Holders as may be required in
order to permit the Corporation to comply with all Applicable Securities Laws with respect to such Demand Registration. The Holders may not make more than three requests for Demand Registrations in any Registration Year and a request for a
Demand Registration by any Demand Holder shall be delivered not more than 21 days and not less than 10 days, prior to the Proposed Prospectus Filing Date for such Demand Registration. The Holders shall not request a Demand Registration to
be conducted in a manner that would require the filing of a prospectus, registration statement or other disclosure document in a jurisdiction outside Canada or the United States or subject the Corporation to continuous disclosure
obligations under applicable securities laws in any such other jurisdiction. No offering of Registrable Securities under this subsection 2.2(a) shall relieve the Corporation of its obligations to effect Piggy Back Registrations pursuant to
subsection 2.2(f).
|
|
(b) |
Subject to subsection 2.2(c), each Demand Registration shall be for such number of Demand Registrable Securities as requested by the Demand Holders.
|
|
(c) |
The Corporation shall have the right, by providing written notice to the Demand Holder not less than five days prior to the Proposed Prospectus Filing Date (or, no more than once per Registration Year, if (x) the Demand Holder expects
such offering to be conducted as a block trade or bought deal and such expectation is indicated in the applicable Demand Registration request and (y) the Demand Holder may not sell the Common Shares that it intends to sell under the
applicable Demand Registration request in the United States pursuant to Rule 144 under the U.S. Securities Act without being subject to the limitations imposed by volume and manner of sale restrictions contained therein on the date of such
request, then the Corporation shall have three days after receiving such Demand Registration request to provide notice to the Demand Holder), to offer and sell Common Shares as part of any Demand Registration initiated by the Demand Holders
under this Agreement. If the managing underwriter or underwriters advise(s) the Corporation that, in such firm's good faith view, the number of Demand Registrable Securities and other securities requested to be included in such Demand
Registration exceeds the number that can be sold in such offering without being likely to have an adverse effect upon the price, timing or distribution of the offering and sale of the Demand Registrable Securities, then the Corporation
shall include in such Demand Registration:
|
|
(i) |
first, the Demand Registrable Securities to be included in such Demand Registration; and
|
|
(ii) |
second, the other Common Shares sought to be included by the Corporation or any other stockholder that can be sold without having the adverse effect referred to above, pro rata on the basis of the relative number of such other Common
Shares sought to be included by the Corporation and such other Persons.
|
|
(d) |
Notwithstanding anything to the contrary herein, the Corporation shall have no obligation to file a Prospectus Supplement pursuant to any request under subsection 2.2 (a) during the 90-day period following the date on which the
Corporation most recently filed a Prospectus Supplement or Non-Base Prospectus, and any such request shall be invalid and of no force or effect hereunder.
|
|
(e) |
The Corporation shall be entitled to postpone the filing of a Prospectus Supplement otherwise required to be prepared and filed by it pursuant to this Section 2.2 (but not the preparation of such Prospectus Supplement) or may request
that Holders suspend the use of any Prospectus Supplement that has been filed by it pursuant to this Section 2.2 if a Blackout Period is in effect or occurs after a Demand Registration request has been received but before the Demand
Registration has been effected. The Corporation will give written notice of its determination, pursuant to this subsection 2.2(d), to postpone the filing of a Prospectus Supplement otherwise required to be prepared and filed by it
pursuant to this Section 2.2 or to request that Holders suspend the use of any Prospectus Supplement that has been filed by it pursuant to this Section 2.2, including a general description of the basis for such determination, promptly
after the occurrence thereof. If the Corporation exercises its rights under this subsection 2.2(d), it shall, as promptly as practicable following the expiration of the applicable postponement or suspension period, file or update and
use its commercially reasonable efforts to cause the effectiveness of the postponed or suspended Prospectus Supplement. If the Corporation, pursuant to this subsection 2.2(d), postpones the filing of a Prospectus Supplement with respect
to a
|
|
|
Demand Registration and if the Holder within 30 days after receipt of notice from the Corporation advises the Corporation in writing that it has determined to withdraw such request for a Demand Registration, such request for a Demand
Registration will be deemed to be withdrawn and such request will be deemed to have not been given for purposes of determining whether the Demand Holders have exercised their rights to a Demand Registration permitted to such Holders
pursuant to this Section 2.2.
|
|
(f) |
A Demand Holder may, at any time prior to the date on which the Corporation enters into a binding underwriting agreement in connection with a Demand Registration, revoke such Demand Holder's Demand Registration in whole or in part. The
Demand Holders may revoke a Demand Registration in whole once per Registration Year without being responsible for any Registration Expenses incurred in respect of such Demand Registration. The Demand Holders shall be responsible for all
Registration Expenses incurred in connection with each other revocation of a Demand Registration during a Registration Year. Each revoked Demand Registration shall constitute a Demand Registration for purposes of the limitation on the
number of Demand Registrations in any Registration Year contained in subsection 2.2(a), in each case unless (i) the Corporation has previously notified the Demand Holder that it intends to register securities in connection with such Demand
Registration and in fact completes such registration notwithstanding the revocation by the Demand Holder or (ii) the Corporation and such Demand Holders mutually agree not to proceed with such Demand Registration. Notwithstanding anything
in this Agreement to the contrary, a request for a Demand Registration shall not be deemed to be effective if, at any time after it has become effective, such Demand Registration is interfered with by any stop order, cease trade order,
injunction or other order or requirement of the SEC or other Governmental Authority for any reason other than a misrepresentation by a Holder relating to such Demand Registration.
|
|
(g) |
If during the term of this Agreement the Corporation proposes to file a Prospectus Supplement in Canada and/or with the SEC in order to permit the issuance of its Common Shares pursuant to a public offering (a "Corporation-Initiated Registration") or the sale of its Common Shares pursuant to a demand made under the Existing RRA or any Corresponding RRA (a "Securityholder-Initiated Registration"),
in a form and manner that, with appropriate changes, would permit the offering of Registrable Securities under such Prospectus Supplement, the Corporation shall give reasonably prompt written notice of its intention to do so to the Holders
and shall use commercially reasonable efforts to include in the proposed distribution such number of Designated Registrable Securities (the "Piggy Back Registrable Securities") as the Holders shall
request (such offering hereinafter referred to as a "Piggy Back Registration") within five (5) days after the giving of such notice (provided that if the Corporation expects such offering to be
conducted as a block trade or bought deal and such expectation is indicated in the applicable notice, then the Holders shall have one (1) Business Day after the giving of notice by the Corporation to provide such request), upon the same
terms (including the method of distribution) as such distribution. If the managing underwriter or underwriters advise(s) the Corporation that, in such firm's good faith view, the number of Piggy Back Registrable Securities and other
securities requested to be included in such Piggy Back Registration exceeds the number that can be sold in such offering without being likely to have an adverse effect upon the price, timing or distribution of the offering and sale of the
Piggy Back Registrable Securities and other securities, then the Corporation shall include in such Piggy Back Registration:
|
|
(i) |
first,
|
|
(A) |
in the case of a Corporation-Initiated Registration, the Common Shares to be included by the Corporation in such Piggy Back Registration; or
|
|
(B) |
in the case of a Securityholder-Initiated Registration, the Common Shares to be included by the Person making the demand under the Existing RRA or any Corresponding RRA, as applicable;
|
|
(ii) |
second, in the case of a Corporation-Initiated Registration only, only if and to the extent required pursuant to the Existing RRA, any Common Shares sought to be included pursuant to an exercise of rights under the Existing RRA;
|
|
(iii) |
third, the Piggy Back Registrable Securities sought to be included, and any other Common Shares sought to be included pursuant to an exercise of rights by any Person under any Corresponding RRA, that can in either case be sold without
having the adverse effect referred to above, pro rata on the basis of the relative number of then-outstanding Common Shares beneficially owned by the Holder(s) and such other Persons, as the case may be; and
|
|
(iv) |
fourth, any other securities sought to be included by any other Person that can be sold without having the adverse effect referred to above, pro rata on the basis of the relative number of such other securities owned by such other
Persons.
|
2.3 |
Selection of Underwriters for Underwritten Demand Registrations
|
2.4 |
Registration Expenses and Selling Expenses.
|
|
(a) |
Subject to subsection 2.2(e), the Corporation shall be responsible for all Registration Expenses.
|
|
(b) |
Each of the Corporation and the Holders shall be responsible for the Selling Expenses on any Demand Registration or Piggy Back Registration in proportion to their respective amounts of Common Shares sold in any such offering.
|
2.5 |
Other
|
|
(a) |
During the term of this Agreement, the Corporation will take all actions necessary to maintain the listing of the Registrable Securities on the Toronto Stock Exchange and the New York Stock Exchange.
|
|
(b) |
During the term of this Agreement, the Corporation shall provide to the Holders, promptly following the entering into of this Agreement in respect of the current year as of the date hereof and subsequently not later than December 15 of
any year, the Corporation's timetable for scheduled Blackout Periods for the succeeding year, and will promptly advise the Holders in writing if the timetable for such scheduled Blackout Periods changes during the course of the year.
|
3.1 |
Procedures
|
|
(a) |
use commercially reasonable efforts to prepare and file, as soon as reasonably practicable, in the English language and, if required, French language, a Prospectus Supplement under and in compliance with Applicable Securities Laws of
each Canadian jurisdiction in which the Secondary Registration is to be effected and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and
proceedings that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the Designated Registrable Securities by the Holders in the applicable Canadian jurisdictions;
|
|
(b) |
use commercially reasonable efforts to prepare and file, as soon as reasonably practicable, with the SEC a Prospectus Supplement, covering the distribution of the Designated Registrable Securities and such other related documents as may
be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the
Designated Registrable Securities by the Holders in the United States;
|
|
(c) |
use commercially reasonable efforts to prepare and file with the applicable Canadian Securities Regulatory Authorities in the Canadian jurisdictions in which the Secondary Registration is to be effected and with the SEC such amendments
and supplements to the Prospectus Supplement, as may be reasonably necessary to comply with the provisions of Applicable Securities Laws with respect to the Registration of Designated Registrable Securities, and take such steps as are
reasonably necessary to maintain the effectiveness of the Prospectus and the Registration Statement during the term of this Agreement;
|
|
(d) |
notify promptly each Holder of Registrable Securities under a Registration Statement or Canadian Base Prospectus and, if requested by such Holder, promptly confirm such advice in writing: (i) when a Registration Statement or Canadian
Base Prospectus has become effective and when any post‑effective amendment or supplement thereto becomes effective; (ii) of any request by the SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority for
additional information after the Registration Statement or Canadian Base Prospectus has become effective or for any post‑effective amendment or supplement to a Registration Statement or Canadian Base Prospectus; (iii) of the issuance by
the SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority of any stop order or cease trade order suspending the effectiveness of a Registration Statement or Canadian Base Prospectus or the initiation
of any proceedings for that purpose; (iv) if, between the effective date of a Registration Statement or Canadian Base Prospectus and the closing of any sale of Registrable Securities pursuant to this Agreement covered by such
Registration Statement, the representations and warranties of the Corporation contained in any underwriting agreement or similar agreement, if any, relating to the offering cease to be true and correct in all material respects; (v) of
the happening of any event or the discovery of any facts during the period a Registration Statement or Canadian Base Prospectus is effective as a result of which such Registration Statement or Canadian Base Prospectus or any document
incorporated by reference therein contains any misrepresentation; (vi) of the receipt by the Corporation of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; (vii) if for any other reason it shall be necessary to amend or supplement the Registration Statement, the Prospectus or the Canadian Base Prospectus in order to
comply with Applicable Securities Laws; and (viii) of the filing of any post‑effective amendment to the Registration Statement or Canadian Base Prospectus that is not automatically effective upon filing;
|
|
(e) |
use commercially reasonable efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Holders of the Designated Registrable Securities covered by the Prospectus Supplement
under such other securities or "blue sky" laws of such jurisdictions as designated by the Holders, acting reasonably, in the request for Demand Registration, (ii) prepare and file in those jurisdictions, such amendments (including
post‑effective amendments) and supplements to such registrations and qualifications as may be reasonably necessary to maintain their effectiveness until the time at which the distribution of the Designated Registrable Securities is
completed (the "Distribution Period"), (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Distribution Period, and
(iv) take all other actions reasonably necessary or advisable to qualify the Designated Registrable Securities for sale in such jurisdictions; provided, however, that the Corporation shall not be required in connection therewith or as a
condition thereto to (A) qualify to do business as a foreign corporation or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subsection 3.1(e), (B) subject itself to any taxation in any such
jurisdiction, or (C) consent to general service of process in such jurisdiction. The Corporation shall promptly notify the Holders of the receipt by the Corporation of any notification with respect to the suspension of the registration or
qualification of any of the Designated Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose;
|
|
(f) |
unless such documents are publicly available via EDGAR or SEDAR, furnish to the Holders and any underwriter or underwriters of any such distribution, upon their request, such number of copies of the Base Prospectus, any Prospectus
Supplement and any amendment and supplement thereto (including any documents incorporated therein by reference) and such other relevant documents as the Holders may reasonably request in order to facilitate the distribution of the
Designated Registrable Securities;
|
|
(g) |
unless such documents are publicly available via EDGAR or SEDAR, furnish to the Holders and any underwriter or underwriters of any such distribution, upon their request, at least one conformed copy of each Registration Statement and each
Canadian Base Prospectus and any post‑effective amendment to either of them, including financial statements and schedules (including all documents incorporated therein by reference and all exhibits thereto);
|
|
(h) |
furnish to counsel for the Holders copies of any comment letters relating to the selling Holders received from the SEC or any Canadian Securities Regulatory Authorities or any other request by the SEC or any Canadian Securities
Regulatory Authorities for amendments or supplements to the Base Prospectus or any Prospectus Supplement or for additional information relating to the selling Holders, provided that the Corporation shall not be required to provide copies of
any non‑substantial routine correspondence with the SEC or Canadian Securities Regulatory Authorities that does not specifically relate to the selling Holders or any information the disclosure of which would be restricted by applicable
privacy laws or other laws governing the treatment of personal information;
|
|
(i) |
use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Base Prospectus or any Prospectus Supplement at the earliest possible moment;
|
|
(j) |
cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates and opinions of counsel necessary to remove any restrictive legends associated with the Registrable Securities to enable such securities
to be sold by the selling Holders (whether in a registered or unregistered transaction) as the selling Holders may reasonably request;
|
|
(k) |
furnish to the Holders and any underwriter or underwriters of any such distribution and such other persons as the Holders may reasonably specify:
|
|
(i) |
an opinion or opinions of counsel to the Corporation addressed to the Holders and the underwriter or underwriters of such distribution and dated the closing date of the distribution, which opinion(s) shall be in form, scope and substance
customary for an offering of the type contemplated by the applicable Secondary Registration, having regard to the form of opinions given by the Corporation's counsel in prior public offerings by the Corporation, and reasonably satisfactory
to the Holders and any underwriters;
|
|
(ii) |
a customary "comfort letter" addressed to the Holders (subject to the auditors' receipt of required representation letters from the Holders) and the underwriter or underwriters dated the date of the Prospectus Supplement and the
closing date of the distribution signed by the auditors of the Corporation (and, if necessary, any other auditors of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements are, or
are required to be, included
|
|
|
in the Prospectus), in customary form and covering such matters of the type customarily covered by "comfort letters" as the Holder and managing underwriter reasonably requests;
|
|
(iii) |
if a Prospectus Supplement is filed in Quebec, opinions of Quebec counsel to the Corporation and the auditors of the Corporation addressed to the Holders and the underwriter or underwriters of such distribution relating to the
translation of the Prospectus and compliance with French language laws, such opinions being dated the dates of the preliminary prospectus supplement, the final prospectus supplement and closing; and
|
|
(iv) |
such corporate certificates as are reasonably requested in connection with such distribution, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such
other matters as the Holders may reasonably request;
|
|
(l) |
make available to the underwriter or underwriters in connection with any Secondary Registration reasonable access to the senior management of the Corporation for investor and analyst calls and meetings with respect to such Secondary
Registrations;
|
|
(m) |
use commercially reasonable efforts to provide any additional cooperation reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities;
|
|
(n) |
as promptly as practicable after delivery of a notice under Section 3.1(d)(v), use commercially reasonable efforts to prepare a supplement or amendment to the Registration Statement or Prospectus, as applicable, or any document
incorporated therein by reference or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities, such Registration Statement or Prospectus will not include a misrepresentation;
|
|
(o) |
otherwise use its commercially reasonable efforts to comply with all Applicable Securities Laws;
|
|
(p) |
provide a transfer agent and registrar for such securities no later than the closing date of the offering;
|
|
(q) |
enter into customary agreements (including an underwriting agreement with the underwriter or underwriters), such agreements to contain such representations and warranties by the Corporation and such other terms and conditions as are
customary for such offering (including customary indemnity and contribution provisions), having regard to the form of underwriting agreements entered into by the Corporation in prior public offerings, and take all such other actions as
permitted by law as the Holders or the underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the distribution of the Designated Registrable Securities;
|
|
(r) |
in the event of the issuance of any order or ruling suspending the distribution of securities under the Prospectus from the Canadian Securities Regulatory Authorities or the effectiveness of the Registration Statement from the SEC,
or any order suspending or preventing the use of the Prospectus or suspending the Secondary Registration of any of the Designated Registrable Securities or cease trading the distribution in any applicable
|
|
|
province or territory of Canada or in the United States, the Corporation will, as expeditiously as possible after actual knowledge by the Corporation thereof, notify the Holders of such event and use its commercially reasonable
efforts promptly to obtain the withdrawal of such order or ruling;
|
|
(s) |
a reasonable time prior to (and again within two Business Days following) the filing of any Registration Statement, any prospectus (including any Prospectus), any Canadian Base Prospectus, any Prospectus Supplement, or any amendment or
supplement to any of the foregoing, provide copies of such documents to the Holders and the underwriters (if any), and make such changes in any of the foregoing documents prior to the filing thereof, or in the case of changes received from
counsel to the Holders by filing an amendment or supplement thereto, as the Holders, underwriters or their respective counsel reasonably requests, and not file any such document in a form to which any Holder or underwriter (if any) shall
not have previously been advised and furnished a copy of or to which counsel for the Holders or the underwriters (if any) shall reasonably object, and not including in any amendment or supplement to such documents any information about the
Holders or any change to the plan of distribution of the Registrable Securities that would limit the method of distribution of the Registrable Securities unless counsel for the Holders has been advised in advance and approved such
information or change, and make available Representatives of the Corporation to the extent reasonably requested to discuss such documents (and any proposed revisions thereto);
|
|
(t) |
otherwise comply with all Applicable Securities Laws and make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least twelve months which shall satisfy the provisions of Section 11(a)
of the U.S. Securities Act and Rule 158 thereunder and any other similar Applicable Securities Laws;
|
|
(u) |
cooperate and assist in any filings required to be made with the U.S. Financial Industry Regulatory Authority, as applicable, and in the performance of any due diligence investigation by any underwriter and its counsel in connection
therewith; and
|
|
(v) |
promptly prepare and file French translations of all documents incorporated by reference into the Base Prospectus.
|
3.2 |
Obligations of the Holders
|
|
(a) |
provide, in writing, such information with respect to the Holders, including the number of securities of the Corporation held by the Holders, as may be required by the Corporation to comply with Applicable Securities Laws in each
jurisdiction in which the Secondary Registration is to be effected;
|
|
(b) |
if required under Applicable Securities Laws, execute any certificate forming part of a preliminary prospectus, final prospectus, registration statement or similar document to be filed with the applicable Canadian Securities Regulatory
Authorities or the SEC;
|
|
(c) |
as expeditiously as possible following actual knowledge by the Holder thereof, notify the Corporation of the happening of any event during the Distribution Period, as a result of which the Prospectus or the Registration Statement, as
in effect, would include a
|
|
|
misrepresentation with respect to any information provided by such Holder pursuant to subsection 3.2(a);
|
|
(d) |
comply with all Applicable Securities Laws with respect to such Secondary Registration;
|
|
(e) |
provide such information to the Corporation regarding the conduct and process of any Demand Registration that the Corporation may reasonably request; and
|
|
(f) |
not effect or permit to be effected sales of Designated Registrable Securities held by the applicable Holder pursuant to the Prospectus, or deliver or permit to be delivered the Prospectus in respect of such sale, after notification by
the Corporation of any order or ruling suspending the effectiveness of the Prospectus or after notification by the Corporation under subsection 3.1(r), until the Corporation advises the Holders that such suspension has been lifted or that
it has filed an amendment to the Prospectus and has provided copies of such amendment to the Holders. The Holders shall, if so directed by the Corporation, deliver to the Corporation (at the Corporation's expense) all copies, other than
permanent file copies, then in the Holders' possession of the Prospectus covering the Designated Registrable Securities that was in effect at the time of receipt of such notice.
|
3.3 |
Covenants Relating To Rule 144
|
4.1 |
Preparation; Reasonable Investigation
|
4.2 |
Indemnification
|
|
(a) |
The Corporation agrees to indemnify and hold harmless, to the extent permitted by law, the Holders and each Person who participates as an underwriter in the offering or sale of the Designated Registrable Securities, and each of their
respective directors, officers, employees and agents and each Person who controls any such underwriter or Holder (within the meaning of any Applicable Securities Laws) against all losses, claims, actions, damages, liabilities and expenses
(including with respect to actions or proceedings, whether commenced or threatened, and including reasonable fees and expenses of counsel) arising out of or based upon:
|
|
(i) |
any information or statement contained in, or any omission of any information or statement in, the Registration Statement, including all documents incorporated therein by reference (other than any information which has been furnished to
the Corporation by the Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1), which at the time and in light of the circumstances under which it was made contains or, in the case of an omission, gives
rise to, a misrepresentation, or is alleged to contain or, in the case of an omission, give rise to, a misrepresentation;
|
|
(ii) |
any information or statement contained in, or any omission of any information or statement in, the Prospectus, any filing made in connection with the Secondary Registration under the securities or other "blue sky" laws or any amendment
thereto, including all documents incorporated in any such Prospectus, filing or amendment by reference (other than any information which has been furnished to the Corporation by the Holders in writing expressly for use therein pursuant to
subsection 3.2(a) or Section 4.1), which at the time and in light of the circumstances in which it was made contains, or, in the case of an omission, gives rise to, a misrepresentation or is alleged to contain, or, in the case of an
omission, give rise to, a misrepresentation;
|
|
(iii) |
any order made or inquiry, investigation or proceedings commenced or threatened by any applicable securities regulatory authority, court or other competent authority based upon any misrepresentation, alleged misrepresentation or any
omission giving rise to, or alleged to give rise to, any misrepresentation in the Prospectus or any amendment thereto (other than any such misrepresentation contained in any information which has been furnished to the Corporation by the
Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1) or based upon any failure or alleged failure to comply with Applicable Securities Laws (other than any failure to comply with Applicable Securities
Laws by any Holder or the underwriters, as applicable, which is not as a result of a failure or an alleged failure of the Corporation to comply with Applicable Securities Laws); or
|
|
(iv) |
noncompliance by the Corporation with any Applicable Securities Laws in connection with a Secondary Registration and the distribution effected thereunder, except in the case of any of the foregoing insofar as such noncompliance was
caused by the Holders' or any underwriter's failure to deliver to a purchaser of Designated Registrable Securities, a copy of the Prospectus or any amendments or supplements thereto or to otherwise comply with Applicable Securities Laws
in a manner which is not a result of a failure or an alleged failure of the Corporation to comply with Applicable Securities Laws.
|
|
(b) |
The Holders agree to indemnify and hold harmless, to the extent permitted by law, the Corporation and each Person who participates as an underwriter in the offering or sale of the Designated Registrable Securities, and each of their
respective directors, officers, employees and agents and each Person who controls such underwriters (within the meaning of any Applicable Securities Laws) against all losses, claims, actions, damages, liabilities and expenses (including
with respect to actions or proceedings, whether commenced or threatened, and including reasonable fees and expenses of counsel) arising out of or based upon:
|
|
(i) |
any information or statement contained in, or any omission of any information or statement in, the Registration Statement, including all documents incorporated therein by reference, which has been furnished to the Corporation by the
Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1, which at the time and in light of the circumstances under which it was made contains or, in the case of an omission, gives rise to, a
misrepresentation, or is alleged to contain or, in the case of an omission, give rise to, a misrepresentation;
|
|
(ii) |
any information or statement contained in, or any omission of any information or statement in, the Prospectus, any filing made in connection with the Registration under the securities or other "blue sky" laws or any amendment thereto,
including all documents incorporated in any such Prospectus, filing or amendment by reference, which has been furnished to the Corporation by the Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1
which at the time and in light of the circumstances in which it was made contains, or, in the case of an omission, gives rise to, a misrepresentation or is alleged to contain, or, in the case of an omission, give rise to, a
misrepresentation;
|
|
(iii) |
any order made or inquiry, investigation or proceedings commenced or threatened by any applicable securities regulatory authority, court or other competent authority based upon (A) any misrepresentation, alleged misrepresentation or any
omission giving rise to, or alleged to give rise to, any misrepresentation in the Prospectus or any amendment thereto based upon any information or statement which has been furnished to the Corporation by the Holders in writing expressly
for use therein pursuant to subsection 3.2(a) or Section 4.1, or (B) any failure or an alleged failure to comply with Applicable Securities Laws by the Holders which is not as a result of a failure or alleged failure of the Corporation to
comply with Applicable Securities Laws;
|
|
(iv) |
noncompliance by a Holder with any Applicable Securities Laws in connection with a distribution of Registrable Securities; or
|
|
(v) |
the Holders' failure to deliver to a purchaser of Designated Registrable Securities, a copy of the Prospectus or any amendments or supplements thereto or to otherwise comply with Applicable Securities Laws in a manner which is not a
result of a failure or an alleged failure of the Corporation to comply with Applicable Securities Laws, except in the case of any of the foregoing insofar as such noncompliance was caused by the Corporation or any underwriter's failure
to deliver to a purchaser of Designated Registrable Securities a copy of the Prospectus or any amendments or supplements thereto or to otherwise comply with Applicable Securities Laws.
|
|
(c) |
Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that any failure to give notice pursuant to this
subsection 4.2(c) shall not relieve the indemnifying party of its obligations under this Section 4.2 unless such failure to give notice results in material prejudice against such indemnifying party) and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel satisfactory to the
indemnified party, acting reasonably. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably
withheld, conditioned or delayed). An indemnified party shall have the right to employ separate counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless: (i) the indemnifying party fails to assume the defence of such suit on behalf of the indemnified party within a reasonable period of time; (ii) the employment of such counsel has been authorized in writing by the
indemnifying party; (iii) the named parties include both the indemnifying party and the indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between
them; or (iv) the named parties to any such suit or proceeding include both the indemnified party and the indemnifying party and the indemnified party has reasonably concluded that there may be one or more legal defences available to the
indemnified party which are different from or in addition to those available to the indemnifying party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the right to assume the defence of such suit or proceeding on behalf of the indemnified party and shall be liable to pay the reasonable fees and expenses of counsel
for the indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to any local counsel) for all such indemnified parties. No indemnifying party may settle any claims without
the express written consent of an indemnified party (such consent not to be unreasonably withheld, conditioned or delayed where such consent does not contain any admission of liability, includes an unconditional release of such indemnified
party from any liabilities arising out of such claim and has as its only obligation on the indemnified party the payment of funds for which the indemnifying party has unconditionally agreed to provide indemnity under this Section 4.2).
|
|
(d) |
The indemnification provided for under this Agreement will survive the expiry of this Agreement and will remain in full force and effect regardless of any investigation made by
|
|
|
or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive any transfer of securities pursuant thereto. In the event the indemnification is unavailable in whole or
in part for any reason under this Section 4.2, the Corporation and the Holders shall contribute to the aggregate of all losses, claims, actions, damages, liabilities and expenses in such proportion as is appropriate to reflect the
relative fault of the Corporation and the Holders in connection with the event giving rise to liability. No Person that has been determined by a court of competent jurisdiction in a final judgment to have engaged in fraud, willful
misconduct, fraudulent misrepresentation or negligence shall be entitled to claim indemnification or contribution pursuant to subsection 4.2(b) or this subsection 4.2(d), as applicable, from any Person who has not also been so
determined to have engaged in such fraud, willful misconduct, fraudulent misrepresentation or negligence.
|
|
(e) |
The Corporation hereby acknowledges and agrees that, with respect to this Section 4.2, each Holder is contracting on its own behalf and as agent for the other indemnified persons referred to in subsection 4.2(a). In this regard, each
Holder will act as trustee for such indemnified persons of the covenants of the Corporation under this Section 4.2 with respect to such indemnified persons and accepts these trusts and will hold and enforce those covenants on behalf of such
indemnified persons.
|
|
(f) |
The Holders hereby acknowledge and agree that, with respect to this Section 4.2, the Corporation is contracting on its own behalf and as agent for the other indemnified persons referred to in subsection 4.2(b). In this regard, the
Corporation will act as trustee for such indemnified persons of the covenants of the Holders under this Section 4.2 with respect to such indemnified persons and accepts these trusts and will hold and enforce those covenants on behalf of
such indemnified persons.
|
|
(g) |
The indemnification and contribution provided for under this Agreement shall be in addition to any other rights to indemnification or contribution that any indemnified person may have pursuant to applicable law or contract and shall
remain in full force and effect regardless of any investigation made by or on behalf of the indemnified person.
|
5.1 |
Secondary Registration Lock‑Up
|
|
(a) |
In respect of any offering of securities by Secondary Registration, upon request by the underwriters or dealers (as the case may be) in connection therewith, the Holders and the Corporation each agree to execute customary lock‑up
agreements, in each case for a period ending no later than 90 days or such shorter term as the underwriters may reasonably request (the "Lock‑Up Period"), after the closing of such Secondary
Registration, on terms required by the underwriters and consistent with those in public offering underwriting agreements customarily entered into by the Corporation.
|
|
(b) |
The Corporation shall be entitled to postpone the filing of a Prospectus Supplement otherwise required to be prepared and filed by it pursuant hereto (but not the
preparation of such Prospectus Supplement) or may request Holders suspend the use of any Prospectus Supplement that has been filed by it pursuant hereto if a Demand Registration request is received prior to the expiration of any Lock‑Up
Period as defined in subsection 5.1(a).
|
5.2 |
Third Party Rights
|
6.1 |
Further Assurances
|
6.2 |
Severability
|
6.3 |
Assignment
|
|
(a) |
this Agreement may be assigned in whole or in part by the Shareholder (upon notice to the Corporation) to any Affiliate of the Shareholder to whom any Registrable Securities are transferred in compliance with any and all applicable
Transfer Restrictions to which the transferring Party is subject. Upon the permitted transferee(s) or assignee(s) executing and delivering to the Corporation an instrument in writing agreeing to be bound by this Agreement, the transferee(s)
or assignee(s) will be entitled to its benefit and be bound by all of its terms as if it were an original signatory hereto and shall be considered a Holder for the purposes of this Agreement, provided that if any Person who was a permitted
transferee ceases to be an Affiliate of the Shareholder, such Person shall cease to have any rights or obligations under this Agreement; and
|
|
(b) |
in the event the Common Shares are converted, reclassified, exchanged or otherwise changed pursuant to a reorganization, amalgamation, merger, arrangement or other form of business combination, this Agreement may be assigned in whole
by the Corporation
|
|
|
(and the Corporation covenants and agrees to use its commercially reasonable efforts to assign this Agreement to) to its successor pursuant to, or in connection with, any such transaction.
|
6.4 |
Remedies and Breaches
|
|
(a) |
Each of the Holders, on the one hand (and for the purposes of this Section 6.4 collectively considered to be a "Party"), and the Corporation, on the other hand, acknowledges and agrees that
irreparable injury to the other Party hereto may occur in the event any of the provisions of this Agreement are not performed in accordance with its specific terms or is otherwise breached and that such injury may not be adequately
compensable in damages. It is accordingly agreed that each of the Holders, on the one hand, and the Corporation, on the other hand, shall, in addition to any other remedy to which they may be entitled at law or in equity, each be entitled
to seek specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof and the other Party hereto will not take any action, directly or indirectly, in opposition to the Party seeking relief on the grounds that
any other remedy or relief is available at law or in equity. The prevailing Party in any such action shall be entitled to recover legal fees and expenses from the non‑ prevailing Party.
|
|
(b) |
Each Holder on the one hand, and the Corporation on the other hand, acknowledges that it shall be liable for any breach of this Agreement by any of its Affiliates or any of its or its Affiliates' Representatives or other Persons acting
on their behalf, and that it shall inform its and its Affiliates' Representatives of the terms of this Agreement and shall cause them to comply with them.
|
6.5 |
Term and Termination
|
(a) |
11:59 p.m. (Calgary time) on the date that is 60 months following the date of this Agreement;
|
(b) |
the date on which this Agreement is terminated by the written agreement of the Parties;
|
(c) |
the first date on which the Shareholder ceases to, directly or indirectly, beneficially own, in aggregate, more than 5% of the then-outstanding Common Shares; and
|
(d) |
the date on which the Standstill Agreements are terminated.
|
6.6 |
Notices
|
|
(a)
|
if to the Shareholder:
|
|
|
|
|
|
Hutchison Whampoa Europe Investments S.à r.l.
|
|||
7, Rue du Marché-aux-Herbes
|
|||
L-1728 Luxembourg
|
|||
Grand Duchy of Luxembourg
|
|||
|
|
|
|
|
|
Attention:
|
[Notice Information Redacted.]
|
|
|
|
|
|
|
with a copy to (which shall not constitute notice):
|
|
|
|
|
|
|
|
Stikeman Elliott LLP
|
|
5300 Commerce Court West
|
|||
199 Bay Street
|
|||
Toronto, Ontario, M5L 1B9
|
|||
|
|
|
|
Attention:
|
Elizabeth Breen/John Ciardullo/J.R. Laffin
|
||
Email:
|
ebreen@stikeman.com/jciardullo@stikeman.com/jrlaffin@stikeman.com
|
||
(b)
|
if to the Corporation:
|
||
Cenovus Energy Inc.
|
|||
4100, 225 – 6 Ave SW
|
|||
Calgary, Alberta T2P 0M5
|
|||
Attention:
|
[Notice Information Redacted.]
|
||
E-mail:
|
[Email Address Redacted.]
|
||
with a copy to (which shall not constitute notice):
|
|||
Bennett Jones LLP
|
|||
4500 Bankers Hall East
|
|||
855 – 2nd Street S.W.
|
|||
Calgary, Alberta T2P 4K7
|
|||
Attention:
|
John Piasta
|
||
Facsimile:
|
(403) 265-7219
|
||
E-mail:
|
piastaj@bennettjones.com
|
6.7 |
Third Party Beneficiaries
|
6.8 |
Governing Law and Attornment
|
6.9 |
Waivers
|
6.10 |
Time of Essence
|
6.11 |
Entire Agreement
|
6.12 |
Counterparts
|
6.13 |
Facsimile Execution
|
1.1 |
Definitions
|
|
(a) |
"Affiliate" means as follows: a Person (first Person) is considered to be an Affiliate of another Person (second Person) if the first Person: (i) Controls the second Person, or (ii) is Controlled by
the second Person, or (iii) is Controlled by another Person that Controls, directly or indirectly, the second Person;
|
|
(b) |
"Agreement" means this registration rights agreement, as amended, restated or modified from time to time;
|
|
(c) |
"Applicable Securities Laws" means, collectively, (i) the securities legislation of each of the provinces and territories of Canada, and all rules, regulations, blanket orders, instruments and
policies established thereunder or issued by the Canadian Securities Regulatory Authorities, and including the rules and policies of the Toronto Stock Exchange, all as amended from time to time, and (ii) the U.S. Securities Act, the U.S.
Exchange Act and all applicable state securities legislation of any state in the United States, in each case with all rules, regulations and orders promulgated thereunder, and including the rules of the New York Stock Exchange, all as amended
from time to time; and in all cases as are applicable to the relevant Person at the applicable time;
|
|
(d) |
"Arrangement" has the meaning ascribed thereto in the recitals;
|
|
(e) |
"Base Prospectus" shall have the meaning set out in Section 2.1;
|
|
(f) |
"Blackout Period" means:
|
|
(i) |
the Corporation's regular annual and quarterly blackout periods as provided in the Disclosure Policy, which currently begin on the fourteenth day before the proposed release of the year‑end or fiscal quarter financial results or budget
information and end two full trading days after financial results or budget information are publicly disclosed; and
|
|
(ii) |
any other bona fide blackout periods designated by the Committee pursuant to and in conformity with the Disclosure Policy,
|
|
(g) |
"Board of Directors" or "Board" means the board of directors of the Corporation;
|
|
(h) |
"Business Day" means any day on which banks are generally open for the transaction of commercial business in Calgary, Alberta, but does not in any event include a Saturday or Sunday or statutory
holiday in Alberta;
|
|
(i) |
"Canadian Base Prospectus" shall have the meaning set out in Section 2.1;
|
|
(j) |
"Canadian Securities Regulatory Authorities" means the securities regulatory authorities in each of the provinces and territories of Canada;
|
|
(k) |
"Committee" means the Corporation's disclosure committee established by the Board to oversee the Corporation's disclosure policy practices, as described in the Disclosure Policy;
|
|
(l) |
"Common Shares" means the common shares in the capital of the Corporation and includes any shares of the Corporation into which such shares may be converted, reclassified, subdivided,
consolidated, exchanged or otherwise changed, whether pursuant to a reorganization, amalgamation, merger, arrangement or other form of reorganization;
|
|
(m) |
"Control" means as follows: a Person (first Person) is considered to Control another Person (second Person) if:
|
|
(i) |
the first Person beneficially owns, or controls or directs, securities of the second Person carrying votes which, if exercised, would entitle the first Person to elect a majority of the directors (or the equivalent) of the second Person
unless that first person holds the voting securities only to secure an obligation;
|
|
(ii) |
the second Person is a partnership, other than a limited partnership, and the first Person directly or indirectly holds more than 50% of the interests of the partnership; or
|
|
(iii) |
the second Person is a limited partnership and the first Person is the general partner of the limited partnership;
|
|
(n) |
"Corporation" means Cenovus Energy Inc. and any corporation resulting from the amalgamation, combination or merger of Cenovus Energy Inc. with another corporation or other corporations, any purchaser
of all or substantially all of the assets of Cenovus Energy Inc., and any entity into which Cenovus Energy Inc. converts;
|
|
(o) |
"Corresponding RRA" means an agreement in the form of this Agreement with any Person that constitutes a "Registration Rights Agreement" as defined in the Arrangement Agreement;
|
|
(p) |
"Demand Holder" shall have the meaning set out in subsection 2.2(a);
|
|
(q) |
"Demand Registrable Securities" shall have the meaning set out in subsection 2.2(a);
|
|
(r) |
"Demand Registration" shall have the meaning set out in subsection 2.2(a);
|
|
(s) |
"Designated Registrable Securities" means Demand Registrable Securities or Piggy Back Registrable Securities, as the case may be;
|
|
(t) |
"Disclosure Policy" means the Corporation's Policy on Disclosure, Confidentiality and Employee Trading dated December 1, 2015, as such policy may be amended, supplemented or replaced from time to
time;
|
|
(u) |
"Distribution Period" shall have the meaning set out in subsection 3.1(d);
|
|
(v) |
"Existing RRA" means that certain Registration Rights Agreement dated as of May 17, 2017 between the Corporation and ConocoPhillips Company, as in effect on the date of the Arrangement Agreement;
|
|
(w) |
"Governmental Authority" means any stock exchange or any court, tribunal or judicial or arbitral body or other governmental department, regulatory agency or body, commission, board, bureau,
agency, or instrumentality of Canada or the United States, or
|
|
|
of any country, state, province, territory, county, municipality, city, town or other political jurisdiction, whether domestic or foreign and whether now or in the future constituted or existing;
|
|
(x) |
"Holder" means: (i) as of the date hereof, the Shareholder; and (ii) at any time after the date hereof, the Shareholder and any Affiliate to which the Shareholder (or a permitted transferee thereof)
has transferred Registrable Securities in compliance with any and all applicable Transfer Restrictions and assigned this Agreement in accordance with Section 5.3;
|
|
(y) |
"misrepresentation" means (i) an untrue statement of material fact, or (ii) an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading;
|
|
(z) |
"Non‑Base Prospectus" means a Canadian Prospectus on Form 44‑101F1 pursuant to National Instrument 44‑101 ‑ Short Form Prospectus Distributions, or in the
event the Corporation is no longer eligible to use Form 44‑101F1, Form 41‑101F1 pursuant to National Instrument 41‑101 ‑ General Prospectus Requirements and/or a Registration Statement under the U.S.
Securities Act on Form F‑10 or such successor form or, if the Corporation is no longer eligible to use Form F‑10 or such successor form, such other form as the Corporation shall be eligible to use to register the Registrable Securities;
|
|
(aa) |
"Parties" means, the Corporation, each Holder and their respective successors and permitted assigns hereunder, and "Party" means any one of them;
|
|
(bb) |
"Person" means any individual, partnership, limited partnership, limited liability partnership, limited or unlimited liability company or corporation, joint venture, syndicate, sole proprietorship,
company or corporation with or without share capital, unincorporated association, unincorporated syndicate, unincorporated organization, trust, trustee, executor, administrator or other legal personal representative or Governmental Authority
or entity, however designated or constituted;
|
|
(cc) |
"Piggy Back Registrable Securities" shall have the meaning set out in subsection 2.2(f);
|
|
(dd) |
"Piggy Back Registration" shall have the meaning set out in subsection 2.2(f);
|
|
(ee) |
"Pre-emptive Right" has the meaning given to it in the Pre-Emptive Rights Agreement;
|
|
(ff) |
"Pre-Emptive Rights Agreement" means the pre-emptive rights agreement to be entered into between the Shareholder and the Corporation on the date hereof;
|
|
(gg) |
"Proposed Prospectus Filing Date" means the date on which the Corporation plans, or the Demand Holder requests, as applicable, for such distribution to file a Prospectus Supplement;
|
|
(hh) |
"Prospectus" means, collectively, a Base Prospectus and a Prospectus Supplement to such Base Prospectus;
|
|
(ii) |
"Prospectus Supplement" means, as applicable, a prospectus supplement to the Canadian Base Prospectus, a supplement to the prospectus contained in the Registration Statement
|
|
|
and/or an amendment to the Registration Statement containing a prospectus supplement, in each case relating to the distribution of Registrable Securities;
|
|
(jj) |
"Registrable Securities" means: (i) the 231,194,698 Common Shares beneficially owned by the Shareholder on the date hereof, including for certainty all Common Shares issued to the Shareholder
pursuant to the Arrangement, and which may be held by other Holders upon a transfer of such Common Shares and corresponding assignment of this Agreement to other Holders in accordance with Section 5.3; (ii) any Common Shares that may be
acquired by a Holder pursuant to an exercise of Warrants distributed to the Shareholder pursuant to the Arrangement; (iii) any Common Shares that may be acquired by a Holder pursuant to a Pre-emptive Right or any Common Shares that may be
acquired by a Holder pursuant to an exercise of Convertible Securities (as defined in the Pre-Emptive Rights Agreement) acquired by a Holder pursuant to a Pre-emptive Right; (iv) any Common Shares or other securities of the Corporation issued
as a dividend, distribution, exchange, share split, recapitalization, or other corporate event in respect of such Common Shares or Warrants; and (v) any Warrants, if and only if, such number of Warrants is less than or equal to the number of
other Registrable Securities under (i)-(iv) above proposed to be included in the Secondary Registration;
|
|
(kk) |
"Registration" means the qualification or registration, as applicable, of securities (or the distributions thereof) under Applicable Securities Laws so as to permit the distribution of such
securities to the public in any or all of the provinces and territories of Canada and in the United States, in each case subject to the limitations contained herein;
|
|
(ll) |
"Registration Expenses" means the expenses incurred in connection with the distribution of the Registrable Securities pursuant to this Agreement comprised of:
|
|
(i) |
all fees, disbursements and expenses payable to not more than one Canadian and one U.S. counsel to the Holders (on an aggregate basis);
|
|
(ii) |
all fees, disbursements and expenses of counsel and auditors to the Corporation;
|
|
(iii) |
all expenses in connection with the preparation, translation, printing and filing of any preliminary prospectus, prospectus, prospectus supplement, registration statement, including the Prospectus, the Prospectus Supplement and the
Registration Statement, or any other offering document and any amendments and supplements thereto and the mailing and delivering of copies thereof to any underwriters and dealers;
|
|
(iv) |
all registration and filing fees of any Canadian Securities Regulatory Authority, of the SEC and of any other Governmental Authority, including FINRA filing fees;
|
|
(v) |
all transfer agents', depositaries' and registrars' fees;
|
|
(vi) |
all expenses relating to the preparation of certificates;
|
|
(vii) |
all fees and expenses of any securities exchange on which the Common Shares are then listed;
|
|
(ix) |
all expenses of the Corporation relating to any analyst or investor presentations and any marketing activities and all travel and lodging expenses of the Corporation in connection with such presentations and marketing activities; and
|
|
(x) |
any fees and expenses of the underwriters, other than Selling Expenses, customarily paid by issuers or sellers of securities, but shall not include any Selling Expenses;
|
|
(mm) |
"Registration Statement" shall have the meaning set out in Section 2.1;
|
|
(nn) |
"Registration Year" means each consecutive 365-day period during the term of this Agreement, with the first Registration Year commencing on the date hereof;
|
|
(oo) |
"Representatives" means, with respect to any Person, any of such Person's directors, officers, employees, consultants, advisors, agents or other Person acting on behalf of the first Person;
|
|
(pp) |
"SEC" means the United States Securities and Exchange Commission;
|
|
(qq) |
"Secondary Registration" means a Piggy Back Registration or a Demand Registration, as the case may be;
|
|
(rr) |
"Selling Expenses" means any fees or commissions payable, or discounts granted, to an underwriter, investment banker, manager or agent in connection with the distribution of the Registrable
Securities or other Common Shares pursuant to this Agreement and any transfer taxes attributable to a sale of Registrable Securities or other Common Shares pursuant to this Agreement;
|
|
(ss) |
"Standstill Agreements" means the standstill agreements entered into between the Supporting Husky Shareholders and the Corporation, dated as of October 24, 2020;
|
|
(tt) |
"Supporting Husky Shareholders" means Hutchison Whampoa Europe Investments S.à r.l. and L.F. Investments S.à r.l.;
|
|
(uu) |
"Transfer Restrictions" means any restrictions or conditions on the transfer of Registrable Securities by a Holder pursuant to any Applicable Securities Laws, any order or requirement of a
Governmental Authority, or any agreement between the Holder and the Corporation;
|
|
(vv) |
"U.S. Exchange Act" means the United States Securities Exchange Act of 1934, as amended, and all rules, regulations and orders promulgated thereunder;
|
|
(ww) |
"U.S. Securities Act" means the United States Securities Act of 1933, as amended, and all rules, regulations and orders promulgated thereunder;
|
|
(xx) |
"United States" or "U.S." means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia;
and
|
|
(yy) |
"Warrants" means the share purchase warrants of the Corporation issued on the date hereof pursuant to the Arrangement, each having an exercise price of $6.54 and a five-year term (subject to
adjustment in certain circumstances).
|
1.2 |
Headings for Reference Only
|
1.3 |
Construction and Interpretation
|
1.4 |
Date for Any Action
|
1.5 |
Currency
|
2.1 |
Filing and Maintenance of Base Prospectus
|
|
(a) |
At all times after the date that is 18 months after the Effective Date, the Corporation shall maintain a short form base shelf prospectus (the "Canadian Base Prospectus") filed with the Canadian
Securities Regulatory Authorities and a registration statement on Form F‑10 or such successor form or, if the Corporation is no longer eligible to use Form F‑10 or such successor form, such other form as the Corporation shall be eligible to
use to register the Registrable Securities (the "Registration Statement" and collectively with the Canadian Base Prospectus, the "Base Prospectus"), containing a
base shelf prospectus filed with the SEC qualifying the Registrable Securities for distribution under Applicable Securities Laws. The Corporation shall cause the Base Prospectus to contain a plan of distribution consistent with the terms of
this Agreement and approved in advance by the Holders acting reasonably.
|
|
(b) |
In the event that the Base Prospectus is not effective or required under Section 2.1(a) at any time during the term of this Agreement, the rights and obligations contained herein shall apply to a Non-Base Prospectus and all references in
this Agreement to Prospectus Supplement shall apply mutatis mutandis to a Non-Base Prospectus.
|
2.2 |
Required Registration
|
|
(a) |
Subject to the provisions hereof, at any time and from time to time during the term of this Agreement, one or more Holders (each such Holder, a "Demand Holder") may request the Corporation to file a
Prospectus Supplement offering all or part of the Registrable Securities (such offering being hereinafter referred to as a "Demand Registration"). Such a request shall be in writing and shall specify
the Proposed Prospectus Filing Date, number of Registrable Securities to be sold (the "Demand Registrable Securities"), the intended method of disposition and the jurisdictions in which the Demand
Holders, acting reasonably, request that the Demand Registration be effected and contain the undertaking of the Demand Holders making the request to provide all such information regarding such Demand Holders as may be required in order to
permit the Corporation to comply with all Applicable Securities Laws with respect to such Demand Registration. The Holders may not make more than three requests for Demand Registrations in any Registration Year and a request for a Demand
Registration by any Demand Holder shall be delivered not more than 21 days and not less than 10 days, prior to the Proposed Prospectus Filing Date for such Demand Registration. The Holders shall not request a Demand Registration to be
conducted in a manner that would require the filing of a prospectus, registration statement or other disclosure document in a jurisdiction outside Canada or the United States or subject the Corporation to continuous disclosure obligations
under applicable securities laws in any such other jurisdiction. No offering of Registrable Securities under this subsection 2.2(a) shall relieve the Corporation of its obligations to effect Piggy Back Registrations pursuant to subsection
2.2(f).
|
|
(b) |
Subject to subsection 2.2(c), each Demand Registration shall be for such number of Demand Registrable Securities as requested by the Demand Holders.
|
|
(c) |
The Corporation shall have the right, by providing written notice to the Demand Holder not less than five days prior to the Proposed Prospectus Filing Date (or, no more than once per Registration Year, if (x) the Demand Holder expects such
offering to be conducted as a block trade or bought deal and such expectation is indicated in the applicable Demand Registration request and (y) the Demand Holder may not sell the Common Shares that it intends to sell under the applicable
Demand Registration request in the United States pursuant to Rule 144 under the U.S. Securities Act without being subject to the limitations imposed by volume and manner of sale restrictions contained therein on the date of such request, then
the Corporation shall have three days after receiving such Demand Registration request to provide notice to the Demand Holder), to offer and sell Common Shares as part of any Demand Registration initiated by the Demand Holders under this
Agreement. If the managing underwriter or underwriters advise(s) the Corporation that, in such firm's good faith view, the number of Demand Registrable Securities and other securities requested to be included in such Demand Registration
exceeds the number that can be sold in such offering without being likely to have an adverse effect upon the price, timing or distribution of the offering and sale of the Demand Registrable Securities, then the Corporation shall include in
such Demand Registration:
|
|
(i) |
first, the Demand Registrable Securities to be included in such Demand Registration; and
|
|
(ii) |
second, the other Common Shares sought to be included by the Corporation or any other stockholder that can be sold without having the adverse effect referred to above, pro rata on the basis of the relative number of such other Common
Shares sought to be included by the Corporation and such other Persons.
|
|
(d) |
Notwithstanding anything to the contrary herein, the Corporation shall have no obligation to file a Prospectus Supplement pursuant to any request under subsection 2.2 (a) during the 90-day period following the date on which the Corporation
most recently filed a Prospectus Supplement or Non-Base Prospectus, and any such request shall be invalid and of no force or effect hereunder.
|
|
(e) |
The Corporation shall be entitled to postpone the filing of a Prospectus Supplement otherwise required to be prepared and filed by it pursuant to this Section 2.2 (but not the preparation of such Prospectus Supplement) or may request
that Holders suspend the use of any Prospectus Supplement that has been filed by it pursuant to this Section 2.2 if a Blackout Period is in effect or occurs after a Demand Registration request has been received but before the Demand
Registration has been effected. The Corporation will give written notice of its determination, pursuant to this subsection 2.2(d), to postpone the filing of a Prospectus Supplement otherwise required to be prepared and filed by it
pursuant to this Section 2.2 or to request that Holders suspend the use of any Prospectus Supplement that has been filed by it pursuant to this Section 2.2, including a general description of the basis for such determination, promptly
after the occurrence thereof. If the Corporation exercises its rights under this subsection 2.2(d), it shall, as promptly as practicable following the expiration of the applicable postponement or suspension period, file or update and use
its commercially reasonable efforts to cause the effectiveness of the postponed or suspended Prospectus Supplement. If the Corporation, pursuant to this subsection 2.2(d), postpones the filing of a Prospectus Supplement with respect to a
|
|
|
Demand Registration and if the Holder within 30
days after receipt of notice from the Corporation advises the Corporation in writing that it has determined to withdraw such request for a Demand Registration, such request for a Demand Registration will be deemed to be withdrawn and
such request will be deemed to have not been given for purposes of determining whether the Demand Holders have exercised their rights to a Demand Registration permitted to such Holders pursuant to this Section 2.2.
|
|
(f) |
A Demand Holder may, at any time prior to the date on which the Corporation enters into a binding underwriting agreement in connection with a Demand Registration, revoke such Demand Holder's Demand Registration in whole or in part. The
Demand Holders may revoke a Demand Registration in whole once per Registration Year without being responsible for any Registration Expenses incurred in respect of such Demand Registration. The Demand Holders shall be responsible for all
Registration Expenses incurred in connection with each other revocation of a Demand Registration during a Registration Year. Each revoked Demand Registration shall constitute a Demand Registration for purposes of the limitation on the number
of Demand Registrations in any Registration Year contained in subsection 2.2(a), in each case unless (i) the Corporation has previously notified the Demand Holder that it intends to register securities in connection with such Demand
Registration and in fact completes such registration notwithstanding the revocation by the Demand Holder or (ii) the Corporation and such Demand Holders mutually agree not to proceed with such Demand Registration. Notwithstanding anything in
this Agreement to the contrary, a request for a Demand Registration shall not be deemed to be effective if, at any time after it has become effective, such Demand Registration is interfered with by any stop order, cease trade order,
injunction or other order or requirement of the SEC or other Governmental Authority for any reason other than a misrepresentation by a Holder relating to such Demand Registration.
|
|
(g) |
If during the term of this Agreement the Corporation proposes to file a Prospectus Supplement in Canada and/or with the SEC in order to permit the issuance of its Common Shares pursuant to a public offering (a "Corporation-Initiated Registration") or the sale of its Common Shares pursuant to a demand made under the Existing RRA or any Corresponding RRA (a "Securityholder-Initiated Registration"),
in a form and manner that, with appropriate changes, would permit the offering of Registrable Securities under such Prospectus Supplement, the Corporation shall give reasonably prompt written notice of its intention to do so to the Holders
and shall use commercially reasonable efforts to include in the proposed distribution such number of Designated Registrable Securities (the "Piggy Back Registrable Securities") as the Holders shall
request (such offering hereinafter referred to as a "Piggy Back Registration") within five (5) days after the giving of such notice (provided that if the Corporation expects such offering to be
conducted as a block trade or bought deal and such expectation is indicated in the applicable notice, then the Holders shall have one (1) Business Day after the giving of notice by the Corporation to provide such request), upon the same terms
(including the method of distribution) as such distribution. If the managing underwriter or underwriters advise(s) the Corporation that, in such firm's good faith view, the number of Piggy Back Registrable Securities and other securities
requested to be included in such Piggy Back Registration exceeds the number that can be sold in such offering without being likely to have an adverse effect upon the price, timing or distribution of the offering and sale of the Piggy Back
Registrable Securities and other securities, then the Corporation shall include in such Piggy Back Registration:
|
|
(A) |
in the case of a Corporation-Initiated Registration, the Common Shares to be included by the Corporation in such Piggy Back Registration; or
|
|
(B) |
in the case of a Securityholder-Initiated Registration, the Common Shares to be included by the Person making the demand under the Existing RRA or any Corresponding RRA, as applicable;
|
|
(ii) |
second, in the case of a Corporation-Initiated Registration only, only if and to the extent required pursuant to the Existing RRA, any Common Shares sought to be included pursuant to an exercise of rights under the Existing RRA;
|
|
(iii) |
third, the Piggy Back Registrable Securities sought to be included, and any other Common Shares sought to be included pursuant to an exercise of rights by any Person under any Corresponding RRA, that can in either case be sold without
having the adverse effect referred to above, pro rata on the basis of the relative number of then-outstanding Common Shares beneficially owned by the Holder(s) and such other Persons, as the case may be; and
|
|
(iv) |
fourth, any other securities sought to be included by any other Person that can be sold without having the adverse effect referred to above, pro rata on the basis of the relative number of such other securities owned by such other Persons.
|
2.3 |
Selection of Underwriters for Underwritten Demand Registrations
|
2.4 |
Registration Expenses and Selling Expenses.
|
|
(a) |
Subject to subsection 2.2(e), the Corporation shall be responsible for all Registration Expenses.
|
|
(b) |
Each of the Corporation and the Holders shall be responsible for the Selling Expenses on any Demand Registration or Piggy Back Registration in proportion to their respective amounts of Common Shares sold in any such offering.
|
2.5 |
Other
|
|
(a) |
During the term of this Agreement, the Corporation will take all actions necessary to maintain the listing of the Registrable Securities on the Toronto Stock Exchange and the New York Stock Exchange.
|
|
(b) |
During the term of this Agreement, the Corporation shall provide to the Holders, promptly following the entering into of this Agreement in respect of the current year as of the date hereof and subsequently not later than December 15 of any
year, the Corporation's timetable for scheduled Blackout Periods for the succeeding year, and will promptly advise the Holders in writing if the timetable for such scheduled Blackout Periods changes during the course of the year.
|
3.1 |
Procedures
|
|
(a) |
use commercially reasonable efforts to prepare and file, as soon as reasonably practicable, in the English language and, if required, French language, a Prospectus Supplement under and in compliance with Applicable Securities Laws of each
Canadian jurisdiction in which the Secondary Registration is to be effected and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings
that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the Designated Registrable Securities by the Holders in the applicable Canadian jurisdictions;
|
|
(b) |
use commercially reasonable efforts to prepare and file, as soon as reasonably practicable, with the SEC a Prospectus Supplement, covering the distribution of the Designated Registrable Securities and such other related documents as may be
reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the
Designated Registrable Securities by the Holders in the United States;
|
|
(c) |
use commercially reasonable efforts to prepare and file with the applicable Canadian Securities Regulatory Authorities in the Canadian jurisdictions in which the Secondary Registration is to be effected and with the SEC such amendments and
supplements to the Prospectus Supplement, as may be reasonably necessary to comply with the provisions of Applicable Securities Laws with respect to the Registration of Designated Registrable Securities, and take such steps as are reasonably
necessary to maintain the effectiveness of the Prospectus and the Registration Statement during the term of this Agreement;
|
|
(d) |
notify promptly each Holder of Registrable Securities under a Registration Statement or Canadian Base Prospectus and, if requested by such Holder, promptly confirm such advice in writing: (i) when a Registration Statement or Canadian
Base Prospectus has become effective and when any post‑effective amendment or supplement thereto becomes effective; (ii) of any request by the SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority for
additional information after the Registration Statement or Canadian Base Prospectus has become effective or for any post‑effective amendment or supplement to a Registration Statement or Canadian Base Prospectus; (iii) of the issuance by
the SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority of any stop order or cease trade order suspending the effectiveness of a Registration Statement or Canadian Base Prospectus or the initiation of
any proceedings for that purpose; (iv) if, between the effective date of a Registration Statement or Canadian Base Prospectus and the closing of any sale of Registrable Securities pursuant to this Agreement covered by such Registration
Statement, the representations and warranties of the Corporation contained in any underwriting agreement or similar agreement, if any, relating to the offering cease to be true and correct in all material respects; (v) of the happening of
any event or the discovery of any facts during the period a Registration Statement or Canadian Base Prospectus is effective as a result of which such Registration Statement or Canadian Base Prospectus or any document incorporated by
reference therein contains any misrepresentation; (vi) of the receipt by the Corporation of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; (vii) if for any other reason it shall be necessary to amend or supplement the Registration Statement, the Prospectus or the Canadian Base Prospectus in order to comply with Applicable
Securities Laws; and (viii) of the filing of any post‑effective amendment to the Registration Statement or Canadian Base Prospectus that is not automatically effective upon filing;
|
|
(e) |
use commercially reasonable efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Holders of the Designated Registrable Securities covered by the Prospectus Supplement under
such other securities or "blue sky" laws of such jurisdictions as designated by the Holders, acting reasonably, in the request for Demand Registration, (ii) prepare and file in those jurisdictions, such amendments (including post‑effective
amendments) and supplements to such registrations and qualifications as may be reasonably necessary to maintain their effectiveness until the time at which the distribution of the Designated Registrable Securities is completed (the "Distribution Period"), (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Distribution Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Designated Registrable Securities for sale in such jurisdictions; provided, however, that the Corporation shall not be required in connection therewith or as a condition thereto to (A)
qualify to do business as a foreign corporation or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subsection 3.1(e), (B) subject itself to any taxation in any such jurisdiction, or (C) consent to
general service of process in such jurisdiction. The Corporation shall promptly notify the Holders of the receipt by the Corporation of any notification with respect to the suspension of the registration or qualification of any of the
Designated Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose;
|
|
(f) |
unless such documents are publicly available via EDGAR or SEDAR, furnish to the Holders and any underwriter or underwriters of any such distribution, upon their request, such number of copies of the Base Prospectus, any Prospectus
Supplement and any amendment and supplement thereto (including any documents incorporated therein by reference) and such other relevant documents as the Holders may reasonably request in order to facilitate the distribution of the
Designated Registrable Securities;
|
|
(g) |
unless such documents are publicly available via EDGAR or SEDAR, furnish to the Holders and any underwriter or underwriters of any such distribution, upon their request, at least one conformed copy of each Registration Statement and each
Canadian Base Prospectus and any post‑effective amendment to either of them, including financial statements and schedules (including all documents incorporated therein by reference and all exhibits thereto);
|
|
(h) |
furnish to counsel for the Holders copies of any comment letters relating to the selling Holders received from the SEC or any Canadian Securities Regulatory Authorities or any other request by the SEC or any Canadian Securities Regulatory
Authorities for amendments or supplements to the Base Prospectus or any Prospectus Supplement or for additional information relating to the selling Holders, provided that the Corporation shall not be required to provide copies of any
non‑substantial routine correspondence with the SEC or Canadian Securities Regulatory Authorities that does not specifically relate to the selling Holders or any information the disclosure of which would be restricted by applicable privacy
laws or other laws governing the treatment of personal information;
|
|
(i) |
use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Base Prospectus or any Prospectus Supplement at the earliest possible moment;
|
|
(j) |
cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates and opinions of counsel necessary to remove any restrictive legends associated with the Registrable Securities to enable such securities
to be sold by the selling Holders (whether in a registered or unregistered transaction) as the selling Holders may reasonably request;
|
|
(k) |
furnish to the Holders and any underwriter or underwriters of any such distribution and such other persons as the Holders may reasonably specify:
|
|
(i) |
an opinion or opinions of counsel to the Corporation addressed to the Holders and the underwriter or underwriters of such distribution and dated the closing date of the distribution, which opinion(s) shall be in form, scope and substance
customary for an offering of the type contemplated by the applicable Secondary Registration, having regard to the form of opinions given by the Corporation's counsel in prior public offerings by the Corporation, and reasonably satisfactory to
the Holders and any underwriters;
|
|
(ii) |
a customary "comfort letter" addressed to the Holders (subject to the auditors' receipt of required representation letters from the Holders) and the underwriter or underwriters dated the date of the Prospectus Supplement and the
closing date of the distribution signed by the auditors of the Corporation (and, if necessary, any other auditors of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements are, or
are required to be, included
|
|
|
in the Prospectus), in customary form and covering such matters of the type customarily covered by "comfort letters" as the Holder and managing underwriter reasonably requests;
|
|
(iii) |
if a Prospectus Supplement is filed in Quebec, opinions of Quebec counsel to the Corporation and the auditors of the Corporation addressed to the Holders and the underwriter or underwriters of such distribution relating to the translation
of the Prospectus and compliance with French language laws, such opinions being dated the dates of the preliminary prospectus supplement, the final prospectus supplement and closing; and
|
|
(iv) |
such corporate certificates as are reasonably requested in connection with such distribution, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such
other matters as the Holders may reasonably request;
|
|
(l) |
make available to the underwriter or underwriters in connection with any Secondary Registration reasonable access to the senior management of the Corporation for investor and analyst calls and meetings with respect to such Secondary
Registrations;
|
|
(m) |
use commercially reasonable efforts to provide any additional cooperation reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities;
|
|
(n) |
as promptly as practicable after delivery of a notice under Section 3.1(d)(v), use commercially reasonable efforts to prepare a supplement or amendment to the Registration Statement or Prospectus, as applicable, or any document
incorporated therein by reference or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities, such Registration Statement or Prospectus will not include a misrepresentation;
|
|
(o) |
otherwise use its commercially reasonable efforts to comply with all Applicable Securities Laws;
|
|
(p) |
provide a transfer agent and registrar for such securities no later than the closing date of the offering;
|
|
(q) |
enter into customary agreements (including an underwriting agreement with the underwriter or underwriters), such agreements to contain such representations and warranties by the Corporation and such other terms and conditions as are
customary for such offering (including customary indemnity and contribution provisions), having regard to the form of underwriting agreements entered into by the Corporation in prior public offerings, and take all such other actions as
permitted by law as the Holders or the underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the distribution of the Designated Registrable Securities;
|
|
(r) |
in the event of the issuance of any order or ruling suspending the distribution of securities under the Prospectus from the Canadian Securities Regulatory Authorities or the effectiveness of the Registration Statement from the SEC, or
any order suspending or preventing the use of the Prospectus or suspending the Secondary Registration of any of the Designated Registrable Securities or cease trading the distribution in any applicable
|
|
|
province or territory of Canada or in the United States, the Corporation will, as expeditiously as possible after actual knowledge by the Corporation thereof, notify the Holders of such event and use its commercially reasonable efforts
promptly to obtain the withdrawal of such order or ruling;
|
|
(s) |
a reasonable time prior to (and again within two Business Days following) the filing of any Registration Statement, any prospectus (including any Prospectus), any Canadian Base Prospectus, any Prospectus Supplement, or any amendment or
supplement to any of the foregoing, provide copies of such documents to the Holders and the underwriters (if any), and make such changes in any of the foregoing documents prior to the filing thereof, or in the case of changes received from
counsel to the Holders by filing an amendment or supplement thereto, as the Holders, underwriters or their respective counsel reasonably requests, and not file any such document in a form to which any Holder or underwriter (if any) shall not
have previously been advised and furnished a copy of or to which counsel for the Holders or the underwriters (if any) shall reasonably object, and not including in any amendment or supplement to such documents any information about the
Holders or any change to the plan of distribution of the Registrable Securities that would limit the method of distribution of the Registrable Securities unless counsel for the Holders has been advised in advance and approved such information
or change, and make available Representatives of the Corporation to the extent reasonably requested to discuss such documents (and any proposed revisions thereto);
|
|
(t) |
otherwise comply with all Applicable Securities Laws and make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least twelve months which shall satisfy the provisions of Section 11(a)
of the U.S. Securities Act and Rule 158 thereunder and any other similar Applicable Securities Laws;
|
|
(u) |
cooperate and assist in any filings required to be made with the U.S. Financial Industry Regulatory Authority, as applicable, and in the performance of any due diligence investigation by any underwriter and its counsel in connection
therewith; and
|
|
(v) |
promptly prepare and file French translations of all documents incorporated by reference into the Base Prospectus.
|
3.2 |
Obligations of the Holders
|
|
(a) |
provide, in writing, such information with respect to the Holders, including the number of securities of the Corporation held by the Holders, as may be required by the Corporation to comply with Applicable Securities Laws in each
jurisdiction in which the Secondary Registration is to be effected;
|
|
(b) |
if required under Applicable Securities Laws, execute any certificate forming part of a preliminary prospectus, final prospectus, registration statement or similar document to be filed with the applicable Canadian Securities Regulatory
Authorities or the SEC;
|
|
(c) |
as expeditiously as possible following actual knowledge by the Holder thereof, notify the Corporation of the happening of any event during the Distribution Period, as a result of which the Prospectus or the Registration Statement, as
in effect, would include a
|
|
|
misrepresentation with respect to any information provided by such Holder pursuant to subsection 3.2(a);
|
|
(d) |
comply with all Applicable Securities Laws with respect to such Secondary Registration;
|
|
(e) |
provide such information to the Corporation regarding the conduct and process of any Demand Registration that the Corporation may reasonably request; and
|
|
(f) |
not effect or permit to be effected sales of Designated Registrable Securities held by the applicable Holder pursuant to the Prospectus, or deliver or permit to be delivered the Prospectus in respect of such sale, after notification by the
Corporation of any order or ruling suspending the effectiveness of the Prospectus or after notification by the Corporation under subsection 3.1(r), until the Corporation advises the Holders that such suspension has been lifted or that it has
filed an amendment to the Prospectus and has provided copies of such amendment to the Holders. The Holders shall, if so directed by the Corporation, deliver to the Corporation (at the Corporation's expense) all copies, other than permanent
file copies, then in the Holders' possession of the Prospectus covering the Designated Registrable Securities that was in effect at the time of receipt of such notice.
|
3.3 |
Covenants Relating To Rule 144
|
4.1 |
Preparation; Reasonable Investigation
|
4.2 |
Indemnification
|
|
(a) |
The Corporation agrees to indemnify and hold harmless, to the extent permitted by law, the Holders and each Person who participates as an underwriter in the offering or sale of the Designated Registrable Securities, and each of their
respective directors, officers, employees and agents and each Person who controls any such underwriter or Holder (within the meaning of any Applicable Securities Laws) against all losses, claims, actions, damages, liabilities and expenses
(including with respect to actions or proceedings, whether commenced or threatened, and including reasonable fees and expenses of counsel) arising out of or based upon:
|
|
(i) |
any information or statement contained in, or any omission of any information or statement in, the Registration Statement, including all documents incorporated therein by reference (other than any information which has been furnished to
the Corporation by the Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1), which at the time and in light of the circumstances under which it was made contains or, in the case of an omission, gives rise
to, a misrepresentation, or is alleged to contain or, in the case of an omission, give rise to, a misrepresentation;
|
|
(ii) |
any information or statement contained in, or any omission of any information or statement in, the Prospectus, any filing made in connection with the Secondary Registration under the securities or other "blue sky" laws or any amendment
thereto, including all documents incorporated in any such Prospectus, filing or amendment by reference (other than any information which has been furnished to the Corporation by the Holders in writing expressly for use therein pursuant to
subsection 3.2(a) or Section 4.1), which at the time and in light of the circumstances in which it was made contains, or, in the case of an omission, gives rise to, a misrepresentation or is alleged to contain, or, in the case of an omission,
give rise to, a misrepresentation;
|
|
(iii) |
any order made or inquiry, investigation or proceedings commenced or threatened by any applicable securities regulatory authority, court or other competent authority based upon any misrepresentation, alleged misrepresentation or any
omission giving rise to, or alleged to give rise to, any misrepresentation in the Prospectus or any amendment thereto (other than any such misrepresentation contained in any information which has been furnished to the Corporation by the
Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1) or based upon any failure or alleged failure to comply with Applicable Securities Laws (other than any failure to comply with Applicable Securities
Laws by any Holder or the underwriters, as applicable, which is not as a result of a failure or an alleged failure of the Corporation to comply with Applicable Securities Laws); or
|
|
(iv) |
noncompliance by the Corporation with any Applicable Securities Laws in connection with a Secondary Registration and the distribution effected thereunder, except in the case of any of the foregoing insofar as such noncompliance was
caused by the Holders' or any underwriter's failure to deliver to a purchaser of Designated Registrable Securities, a copy of the Prospectus or any amendments or supplements thereto or to otherwise comply with Applicable Securities Laws
in a manner which is not a result of a failure or an alleged failure of the Corporation to comply with Applicable Securities Laws.
|
|
(b) |
The Holders agree to indemnify and hold harmless, to the extent permitted by law, the Corporation and each Person who participates as an underwriter in the offering or sale of the Designated Registrable Securities, and each of their
respective directors, officers, employees and agents and each Person who controls such underwriters (within the meaning of any Applicable Securities Laws) against all losses, claims, actions, damages, liabilities and expenses (including with
respect to actions or proceedings, whether commenced or threatened, and including reasonable fees and expenses of counsel) arising out of or based upon:
|
|
(i) |
any information or statement contained in, or any omission of any information or statement in, the Registration Statement, including all documents incorporated therein by reference, which has been furnished to the Corporation by the
Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1, which at the time and in light of the circumstances under which it was made contains or, in the case of an omission, gives rise to, a
misrepresentation, or is alleged to contain or, in the case of an omission, give rise to, a misrepresentation;
|
|
(ii) |
any information or statement contained in, or any omission of any information or statement in, the Prospectus, any filing made in connection with the Registration under the securities or other "blue sky" laws or any amendment thereto,
including all documents incorporated in any such Prospectus, filing or amendment by reference, which has been furnished to the Corporation by the Holders in writing expressly for use therein pursuant to subsection 3.2(a) or Section 4.1 which
at the time and in light of the circumstances in which it was made contains, or, in the case of an omission, gives rise to, a misrepresentation or is alleged to contain, or, in the case of an omission, give rise to, a misrepresentation;
|
|
(iii) |
any order made or inquiry, investigation or proceedings commenced or threatened by any applicable securities regulatory authority, court or other competent authority based upon (A) any misrepresentation, alleged misrepresentation or any
omission giving rise to, or alleged to give rise to, any misrepresentation in the Prospectus or any amendment thereto based upon any information or statement which has been furnished to the Corporation by the Holders in writing expressly for
use therein pursuant to subsection 3.2(a) or Section 4.1, or (B) any failure or an alleged failure to comply with Applicable Securities Laws by the Holders which is not as a result of a failure or alleged failure of the Corporation to comply
with Applicable Securities Laws;
|
|
(iv) |
noncompliance by a Holder with any Applicable Securities Laws in connection with a distribution of Registrable Securities; or
|
|
(v) |
the Holders' failure to deliver to a purchaser of Designated Registrable Securities, a copy of the Prospectus or any amendments or supplements thereto or to otherwise comply with Applicable Securities Laws in a manner which is not a
result of a failure or an alleged failure of the Corporation to comply with Applicable Securities Laws, except in the case of any of the foregoing insofar as such noncompliance was caused by the Corporation or any underwriter's failure to
deliver to a purchaser of Designated Registrable Securities a copy of the Prospectus or any amendments or supplements thereto or to otherwise comply with Applicable Securities Laws.
|
|
(c) |
Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that any failure to give notice pursuant to this
subsection 4.2(c) shall not relieve the indemnifying party of its obligations under this Section 4.2 unless such failure to give notice results in material prejudice against such indemnifying party) and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel satisfactory to the indemnified
party, acting reasonably. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld,
conditioned or delayed). An indemnified party shall have the right to employ separate counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be at the expense of the indemnified party
unless: (i) the indemnifying party fails to assume the defence of such suit on behalf of the indemnified party within a reasonable period of time; (ii) the employment of such counsel has been authorized in writing by the indemnifying party;
(iii) the named parties include both the indemnifying party and the indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; or (iv) the named
parties to any such suit or proceeding include both the indemnified party and the indemnifying party and the indemnified party has reasonably concluded that there may be one or more legal defences available to the indemnified party which are
different from or in addition to those available to the indemnifying party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defence of such suit or proceeding on behalf of the indemnified party and shall be liable to pay the reasonable fees and expenses of counsel for the indemnified party, it
being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to any local counsel) for all such indemnified parties. No indemnifying party may settle any claims without the express written
consent of an indemnified party (such consent not to be unreasonably withheld, conditioned or delayed where such consent does not contain any admission of liability, includes an unconditional release of such indemnified party from any
liabilities arising out of such claim and has as its only obligation on the indemnified party the payment of funds for which the indemnifying party has unconditionally agreed to provide indemnity under this Section 4.2).
|
|
(d) |
The indemnification provided for under this Agreement will survive the expiry of this Agreement and will remain in full force and effect regardless of any investigation made by
|
|
|
or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive any transfer of securities pursuant thereto. In the event the indemnification is unavailable in whole or in
part for any reason under this Section 4.2, the Corporation and the Holders shall contribute to the aggregate of all losses, claims, actions, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative
fault of the Corporation and the Holders in connection with the event giving rise to liability. No Person that has been determined by a court of competent jurisdiction in a final judgment to have engaged in fraud, willful misconduct,
fraudulent misrepresentation or negligence shall be entitled to claim indemnification or contribution pursuant to subsection 4.2(b) or this subsection 4.2(d), as applicable, from any Person who has not also been so determined to have
engaged in such fraud, willful misconduct, fraudulent misrepresentation or negligence.
|
|
(e) |
The Corporation hereby acknowledges and agrees that, with respect to this Section 4.2, each Holder is contracting on its own behalf and as agent for the other indemnified persons referred to in subsection 4.2(a). In this regard, each
Holder will act as trustee for such indemnified persons of the covenants of the Corporation under this Section 4.2 with respect to such indemnified persons and accepts these trusts and will hold and enforce those covenants on behalf of such
indemnified persons.
|
|
(f) |
The Holders hereby acknowledge and agree that, with respect to this Section 4.2, the Corporation is contracting on its own behalf and as agent for the other indemnified persons referred to in subsection 4.2(b). In this regard, the
Corporation will act as trustee for such indemnified persons of the covenants of the Holders under this Section 4.2 with respect to such indemnified persons and accepts these trusts and will hold and enforce those covenants on behalf of such
indemnified persons.
|
|
(g) |
The indemnification and contribution provided for under this Agreement shall be in addition to any other rights to indemnification or contribution that any indemnified person may have pursuant to applicable law or contract and shall remain
in full force and effect regardless of any investigation made by or on behalf of the indemnified person.
|
5.1 |
Secondary Registration Lock‑Up
|
|
(a) |
In respect of any offering of securities by Secondary Registration, upon request by the underwriters or dealers (as the case may be) in connection therewith, the Holders and the Corporation each agree to execute customary lock‑up
agreements, in each case for a period ending no later than 90 days or such shorter term as the underwriters may reasonably request (the "Lock‑Up Period"), after the closing of such Secondary
Registration, on terms required by the underwriters and consistent with those in public offering underwriting agreements customarily entered into by the Corporation.
|
|
(b) |
The Corporation shall be entitled to postpone the filing of a Prospectus Supplement otherwise required to be prepared and filed by it pursuant hereto (but not the preparation of such Prospectus Supplement) or may request Holders suspend
the use of any Prospectus Supplement that has been filed by it pursuant hereto if a Demand Registration request is received prior to the expiration of any Lock‑Up Period as defined in subsection 5.1(a).
|
6.1 |
Further Assurances
|
6.2 |
Severability
|
6.3 |
Assignment
|
|
(a) |
this Agreement may be assigned in whole or in part by the Shareholder (upon notice to the Corporation) to any Affiliate of the Shareholder to whom any Registrable Securities are transferred in compliance with any and all applicable
Transfer Restrictions to which the transferring Party is subject. Upon the permitted transferee(s) or assignee(s) executing and delivering to the Corporation an instrument in writing agreeing to be bound by this Agreement, the transferee(s)
or assignee(s) will be entitled to its benefit and be bound by all of its terms as if it were an original signatory hereto and shall be considered a Holder for the purposes of this Agreement, provided that if any Person who was a permitted
transferee ceases to be an Affiliate of the Shareholder, such Person shall cease to have any rights or obligations under this Agreement; and
|
|
(b) |
in the event the Common Shares are converted, reclassified, exchanged or otherwise changed pursuant to a reorganization, amalgamation, merger, arrangement or other form of business combination, this Agreement may be assigned in whole
by the Corporation
|
|
|
(and the Corporation covenants and agrees to use its commercially reasonable efforts to assign this Agreement to) to its successor pursuant to, or in connection with, any such transaction.
|
6.4 |
Remedies and Breaches
|
|
(a) |
Each of the Holders, on the one hand (and for the purposes of this Section 6.4 collectively considered to be a "Party"), and the Corporation, on the other hand, acknowledges and agrees that
irreparable injury to the other Party hereto may occur in the event any of the provisions of this Agreement are not performed in accordance with its specific terms or is otherwise breached and that such injury may not be adequately
compensable in damages. It is accordingly agreed that each of the Holders, on the one hand, and the Corporation, on the other hand, shall, in addition to any other remedy to which they may be entitled at law or in equity, each be entitled to
seek specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof and the other Party hereto will not take any action, directly or indirectly, in opposition to the Party seeking relief on the grounds that any
other remedy or relief is available at law or in equity. The prevailing Party in any such action shall be entitled to recover legal fees and expenses from the non‑ prevailing Party.
|
|
(b) |
Each Holder on the one hand, and the Corporation on the other hand, acknowledges that it shall be liable for any breach of this Agreement by any of its Affiliates or any of its or its Affiliates' Representatives or other Persons acting on
their behalf, and that it shall inform its and its Affiliates' Representatives of the terms of this Agreement and shall cause them to comply with them.
|
6.5 |
Term and Termination
|
(a) |
11:59 p.m. (Calgary time) on the date that is 60 months following the date of this Agreement;
|
(b) |
the date on which this Agreement is terminated by the written agreement of the Parties;
|
(c) |
the first date on which the Shareholder ceases to, directly or indirectly, beneficially own, in aggregate, more than 5% of the then-outstanding Common Shares; and
|
(d) |
the date on which the Standstill Agreements are terminated.
|
6.6 |
Notices
|
6.7 |
Third Party Beneficiaries
|
6.8 |
Governing Law and Attornment
|
6.9 |
Waivers
|
6.10 |
Time of Essence
|
6.11 |
Entire Agreement
|
6.12 |
Counterparts
|
6.13 |
Facsimile Execution
|
SPACE FOR GUARANTEES OF SIGNATURES (BELOW)
|
)
|
|||
)
|
||||
)
|
Signature of Transferor
|
|||
)
|
||||
)
|
||||
Guarantor’s Signature/Stamp
|
)
|
Name of Transferor
|
||
)
|
|
• |
Canada and the USA: A
Medallion Signature Guarantee obtained from a member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP, NYSE, MSP). Many commercial banks, savings banks, credit unions, and all broker dealers participate in a Medallion
Signature Guarantee Program. The Guarantor must affix a stamp bearing the actual words “Medallion Guaranteed”, with the correct prefix covering the face value of the certificate.
|
|
• |
Canada: A Signature
Guarantee obtained from an authorized officer of the Royal Bank of Canada, Scotia Bank or TD Canada Trust. The Guarantor must affix a stamp bearing the actual words “Signature Guaranteed”, sign and print their full name and alpha numeric
signing number. Signature Guarantees are not accepted from Treasury Branches, Credit Unions or Caisse Populaires unless they are members of a Medallion Signature Guarantee Program. For corporate holders, corporate signing resolutions,
including certificate of incumbency, are also required to accompany the transfer, unless there is a “Signature & Authority to Sign Guarantee” Stamp affixed to the transfer (as opposed to a “Signature Guaranteed” Stamp) obtained from an
authorized officer of the Royal Bank of Canada, Scotia Bank or TD Canada Trust or a Medallion Signature Guarantee with the correct prefix covering the face value of the certificate.
|
|
• |
Outside North America: For
holders located outside North America, present the certificates(s) and/or document(s) that require a guarantee to a local financial institution that has a corresponding Canadian or American affiliate which is a member of an acceptable
Medallion Signature Guarantee Program. The corresponding affiliate will arrange for the signature to be over-guaranteed.
|
TO:
|
Cenovus Energy Inc.
|
AND TO:
|
Computershare Trust Company of Canada
|
Name(s) in Full and Social Insurance Number(s) (if applicable)
|
Address(es)
|
Number of Common Shares
|
||
)
|
||
)
|
||
)
|
||
Witness
|
)
|
(Signature of Warrantholder, to be the same as appears on the face of this Warrant Certificate)
|
)
|
||
)
|
||
)
|
Name of Registered Warrantholder
|
Canada Business
Corporations Act (CBCA) FORM 4 ARTICLES OF AMENDMENT (Section 27 or 177) 1 – Current corporate name CENOVUS ENERGY INC. 2 - Corporation number 1 0 8 4 9 2 3 - 5
3 – The articles
are amended as follows: (Note that more than one section can be filled out) A: The corporation changes its name to: B: The corporation changes the province or territory in Canada where the registered office is situated to: To complete
the change, a Form 3 – Change of Registered Office Address must accompany the Articles of Amendment. C: The corporation changes the minimum and/or maximum number of directors to: (for a fixed number of directors, indicate the same number in
both boxes). Minimum numberMaximum number D: Other changes: (for example, to the classes of shares, to restrictions on share transfers, to restrictions on the businesses of the corporation or to any other provisions that are permitted by
the CBCA to be set out in the Articles) Please specify. Pursuant to subsection 27(1)(b) of the Canada Business Corporations Act, the Articles of the Corporation are hereby amended by the creation of the series of First Preferred Shares set
out in Schedules "A", "B", "C", "D", "E", "F", "G" and "H" hereto. 4 – Declaration I hereby certify that I am a director or an authorized officer of the corporation. Signature: (signed) "Alex J. Pourbaix" Print name: Alex J.
PourbaixTelephone number:403-766-3770 Note: Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or to both (subsection
250(1) of the CBCA).
|
|
Certificate of Amendment Canada Business Corporations Act Certificat de modification Loi canadienne sur les sociétés par actions Cenovus Energy Inc. Corporate name / Dénomination sociale
1084923-5 Corporation number / Numéro de société I HEREBY CERTIFY that the articles of the above-named corporation are amended under section 178 of the Canada Business Corporations Act as set out in the attached articles of amendment. JE
CERTIFIE que les statuts de la société susmentionnée sont modifiés aux termes de l'article 178 de la Loi canadienne sur les sociétés par actions, tel qu'il est indiqué dans les clauses modificatrices ci-jointes. Raymond Edwards Director /
Directeur 2020-12-30 Date of amendment (YYYY-MM-DD)
Date de modification (AAAA-MM-JJ) |
|
Form 4 Canada Business Corporations Act (CBCA) (s. 27 or 177) Formulaire 4 Loi canadienne sur les sociétés par actions (LCSA) (art. 27 ou 177) Articles of Amendment Clauses modificatrices
Corporate name Dénomination sociale 1 Cenovus Energy Inc. Corporation number Numéro de la société 2 1084923-5 The articles are amended as follows Les statuts sont modifiés de la façon suivante 3 See attached schedule / Voir l'annexe ci-jointe
Declaration: I certify that I am a director or an officer of the corporation. Déclaration : J’atteste que je suis un administrateur ou un dirigeant de la société. Misrepresentation constitutes an offence and, on summary conviction, a person
is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250 (1) of the CBCA). Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par
procédure sommaire, est passible d’une amende maximale de 5 000 $ et d’un emprisonnement maximal de six mois, ou l’une de ces peines (paragraphe 250(1) de la LCSA). You are providing information required by the CBCA. Note that both the CBCA
and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049. Vous fournissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les
renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049. Alex J. Pourbaix 403-766-3770 Alex J. Pourbaix Original signed by /
Original signé par
|
|
(a) |
In these Series 1 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 2.404%; and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 1.73%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book- Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 1 First Preferred Shares held through the Book-Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
|
(ix) |
"Common Shares" means the common shares of the Corporation;
|
(x)
|
"Definitive Share" means a fully registered, typewritten, printed, lithographed,
engraved or otherwise produced share certificate representing one or more Series 1 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, March 31 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, March 31 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 1.73%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30th day prior to the first day of such Quarterly Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book-Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non-callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such rate
does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected by the
Corporation as being the annual yield to maturity on such date, compounded semi-annually, that a non-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date
with a term to maturity of five years;
|
|
(xx) |
"Initial Fixed Rate Period" means the period from and including the Issue Date, to, but excluding, March 31, 2021;
|
(xxi)
|
"Issue Date" means the date the Series 1 First Preferred Shares created pursuant to
these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 1 Conversion Date" means March 31, 2021, and March 31 in every fifth year thereafter;
|
|
(xxix) |
"Series 2 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 2 of the Corporation;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to"; "ranking
junior to" and similar expressions refer to the order of priority in the payment of dividends or in the distribution of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 1 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Fixed Rate Period, the holders of the Series 1 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by the Board of
Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, fixed cumulative preferential cash dividends, payable quarterly, in the amount per Series 1 First Preferred Share determined by multiplying
one quarter of the Annual Fixed Dividend Rate for such Fixed Rate Period by $25.00. Each such dividend payable to the holders of Series 1 First Preferred Shares shall be paid (less any tax required to be deducted or withheld by the
Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 1 First Preferred Shares on the First Dividend Payment Date under this
paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid or other distribution made on any securities (for the purpose of this paragraph, the "initial securities") transferred to
the Corporation in exchange for the issuance of such Series 1 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Fixed Rate Calculation Date, the Corporation shall determine the Annual Fixed Dividend Rate for the ensuing Fixed Rate Period. Each such determination shall, in the absence
of manifest error, be final and binding upon the Corporation and upon all holders of Series 1 First Preferred Shares. The Corporation shall, on each Fixed Rate Calculation Date, give written notice of the Annual Fixed Dividend Rate for
the ensuing Fixed Rate Period to the registered holders of the then outstanding Series 1 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile transmission or by ordinary unregistered first class
prepaid mail addressed to each holder of Series 1 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address of any holder not so appearing, to the address of
such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 1 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 1 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 1 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 1 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner,
|
|
(a) |
Subject to the provisions of paragraph (9), on March 31, 2021, and on March 31 in every fifth year thereafter, the Corporation, upon giving notice as herein provided, may redeem all
or any part of the Series 1 First Preferred Shares by the payment of an amount in cash for each share to be redeemed equal to $25.00 (such amount being the "redemption amount") plus all accrued and
unpaid dividends thereon to but excluding the date fixed for redemption (the whole constituting the "cash redemption price").
|
|
(b) |
In any case of redemption of Series 1 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 1 First Preferred Shares to be redeemed a written notice of the intention of the Corporation to redeem such Series 1 First
Preferred Shares. Such notice shall be mailed in a prepaid letter addressed to each such holder at the holder's address as it appears on the books of the Corporation or, in the event of the address of any such holder not so appearing, to
the last known address of such holder; provided, however, that accidental failure to give any such notice to one or more of such holders shall not affect the validity of such redemption. Such notice shall set out the cash redemption price
and the date on which redemption is to take place and, if part only of the Series 1 First Preferred Shares held by the person to whom it is addressed is to be redeemed, the number so to be redeemed. On or after the date so specified for
redemption, the Corporation shall pay or cause to be paid
|
|
(a) |
Holders of Series 1 First Preferred Shares shall have the right to convert on each Series 1 Conversion Date, subject to the provisions hereof, all or any of their Series 1 First
Preferred Shares into Series 2 First Preferred Shares on the basis of one Series 2 First Preferred Share for each Series 1 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 1 Conversion Date, give notice in writing in accordance with the provisions of subparagraph (2)(b) to the then. registered holders of the Series 1 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 1 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior to
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 1 First Preferred Shares of the redemption of all of the Series 1 First Preferred Shares,
then the right of a holder of Series 1 First Preferred Shares to convert such Series 1 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 1 First Preferred Shares shall not be entitled to convert their Series 1 First Preferred Shares into Series 2 First Preferred Shares on a Series 1 Conversion Date
if the Corporation determines that there would remain outstanding on a Series 1 Conversion Date less than 1,000,000 Series 2 First Preferred Shares, after having taken into account all Series 1 First Preferred Shares tendered for
conversion into Series 2 First Preferred Shares and all Series 2 First Preferred Shares tendered for conversion into Series 1 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the
provisions of subparagraph (2)(b) to all affected registered holders of the Series 1 First Preferred Shares at least seven days prior to the applicable Series 1 Conversion Date and shall issue and deliver, or cause to be delivered, prior
to such Series 1 Conversion Date, at the expense of the Corporation, to such holders of Series 1 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 1 First Preferred Shares,
certificates representing the Series 1 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 1 Conversion Date less than 1,000,000 Series 1 First Preferred Shares, after having taken into account
all Series 1 First Preferred Shares tendered for conversion into Series 2 First Preferred Shares and all Series 2 First Preferred Shares tendered for conversion into Series 1 First Preferred Shares on such Series 1 Conversion Date, then
all of the remaining outstanding Series 1 First Preferred Shares shall be converted automatically into Series 2 First Preferred Shares on the basis of one Series 2 First Preferred Share for each Series 1 First Preferred Share on the
applicable Series 1 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 1 First Preferred Shares at
least seven days prior to the Series 1 Conversion Date.
|
|
(e) |
The conversion right may be exercised by a holder of Series 1 First Preferred Shares by notice in writing, in a form satisfactory to the Corporation (the "Series 1 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 1 First Preferred Shares at the principal office in Toronto or Calgary of such transfer agent and registrar not
earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on the 15th day preceding, a Series 1 Conversion Date. The Series 1
Conversion Notice shall indicate the number of Series 1 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the Corporation, the election of a holder to convert is irrevocable. Except in
the case where the Series 2 First Preferred Shares are in the Book-Based System, if the Series 2 First Preferred Shares are to be registered in a name or names different from the name or names of the registered holder of the Series 1
|
|
(f) |
If all remaining outstanding Series 1 First Preferred Shares are to be converted into Series 2 First Preferred Shares on the applicable Series 1 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 1 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 1 Conversion Date into Series 2 First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 2 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 1 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 1 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 2 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 1 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 2 First Preferred Shares registered in the name of the holders of the Series 1 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and•registrar for the Series 1 First Preferred Shares of the certificate or certificates for the Series 1 First Preferred Shares to be converted. If only a part of such
Series 1 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 2 Conversion Notice,
the Series 1 First Preferred Shares converted into Series 2 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14), shall fail to deliver to the holders of the Series 1 First Preferred Shares to be converted
share certificates representing the Series 2 First Preferred Shares into which such shares have been converted.
|
|
(h) |
The obligation of the Corporation to issue Series 2 First Preferred Shares upon conversion of any Series 1 First Preferred Shares shall be deferred during the continuance of any one
or more of the following events:
|
|
(i) |
the issuing of such Series 2 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 2 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
(iii)
|
for any reason beyond its control, the Corporation is unable to issue Series 2 First Preferred Shares or is unable to deliver
Series 2 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 2 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of, any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 2 First Preferred Shares, and the Corporation shall attempt to sell such
Series 2 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 2 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 2 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 1 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 1 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 1 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
1 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 1 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in
such other name as the System Operator may use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 1 First Preferred Shares shall be made
only through the Book-Based System. Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 1 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the
System Operator evidencing such holder's ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 1 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 1 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 1
First Preferred Shares or the delivery of Series 2 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion, shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 1 First Preferred Shares, the cash redemption price for the Series 1 First Preferred Shares or certificates, if any, for Series 2 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 1 First Preferred Shares.
|
|
(c) |
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its responsibilities with respect to the Book-Based System and the
Corporation is unable to locate a qualified successor or the Corporation elects, or is required by applicable law, to withdraw the Series 1 First Preferred Shares from the Book- Based System, then subparagraphs (a) and (b) of this
paragraph shall no longer be applicable to the Series 1 First Preferred Shares and the Corporation shall notify Book- Entry Holders through the System Operator of the occurrence of any such event or election and of the availability of
Definitive Shares to Book-Entry Holders. Upon surrender by the System Operator of the Global Certificate, if applicable, to the transfer agent and registrar for the Series 1 First Preferred Shares accompanied by registration instructions
for re-registration, the Corporation shall execute and deliver Definitive Shares. The Corporation shall not be liable for any delay in delivering such instructions and may conclusively act and rely on and shall be protected in acting and
relying on such instructions. Upon the issuance of Definitive Shares, the Corporation shall recognize the registered holders of such Definitive Shares and the Book-Entry Shares for which such Definitive Shares have been substituted shall
be void and of no further effect.
|
(d)
|
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series
1 First Preferred Shares are subject to the provisions of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (14) shall prevail.
|
|
(a) |
In these Series 2 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 2.404%; and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 1.73%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book- Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 2 First Preferred Shares held through the Book-Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
(ix)
|
"Common Shares" means the common shares of the Corporation;
|
|
(x) |
"Definitive Share" means a fully registered, typewritten, printed, lithographed, engraved or otherwise produced share certificate
representing one or more Series 2 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, March 31 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, March 31 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 1.73%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30th day prior to the first day of such Quarterly Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book- Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non-callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such rate
does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected by the
Corporation as being the annual yield to maturity on such date, compounded semi-annually, that a non-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date
with a term to maturity of five years;
|
(xx)
|
"Initial Fixed Rate Period" means the period from and including the Issue Date to,
but excluding, March 31, 2021;
|
|
(xxi) |
"Issue Date" means the date the Series 2 First Preferred Shares created pursuant to these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 1 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 1 of the Corporation;
|
|
(xxix) |
"Series 2 Conversion Date" means March 31, 2021, and March 31 in every fifth year thereafter;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to", ''ranking junior to" and similar expressions refer to the order of priority in the payment of dividends or in the
distribution of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 2 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Quarterly Floating Rate Period, the holders of the Series 2 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by
the Board of Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, cumulative preferential cash dividends, payable quarterly, in the amount per Series 2 First Preferred Share determined by
multiplying the Floating Quarterly Dividend Rate for such Quarterly Floating Rate Period by $25.00 and multiplying that product by a fraction, the numerator of which is the actual number of days in such Quarterly Floating Rate Period and
the denominator of which is 365 or 366, depending on the actual number of days in the applicable year. Each such dividend payable to the holders of Series 2 First Preferred Shares shall be paid (less any tax required to be deducted or
withheld by the Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 2 First Preferred Shares on the First Dividend Payment
Date under this paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid on any securities (for the purpose of this paragraph, the "initial securities") transferred to the
Corporation in exchange for the issuance of such Series 2 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Floating Rate Calculation Date, the Corporation shall determine the Floating Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period. Each such determination
shall, in the absence of manifest error, be final and binding upon the Corporation and upon all holders of Series 2 First Preferred Shares. The Corporation shall, on each Floating Rate Calculation Date, give written notice of the Floating
Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period to the registered holders of the then outstanding Series 2 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile
transmission or by ordinary unregistered first class prepaid mail addressed to each holder of Series 2 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address
of any holder not so appearing, to the address of such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 2 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 2 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 2 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 2 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner,
|
|
(a) |
Subject to the provisions of paragraph (9), the Corporation, upon giving notice as herein provided, may redeem all or any part of the Series 2 First Preferred Shares by the payment
of an amount in cash for each share to be redeemed equal to
|
|
(i) |
$25.00 in the case of a redemption on a Series 2 Conversion Date on or after March 31, 2021, or
|
|
(ii) |
$25.50 in the case of a redemption on any other date after the Issue Date that is not a Series 2 Conversion Date,
|
|
(b) |
In any case of redemption of Series 2 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 2 First Preferred Shares to be redeemed a written notice of the intention of
|
|
(a) |
Holders of Series 2 First Preferred Shares shall have the right to convert on each Series 2 Conversion Date, subject to the provisions hereof, all or any of their Series 2 First
Preferred Shares into Series 1 First Preferred Shares on the basis of one Series 1 First Preferred Share for each Series 2 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 2 Conversion Date, give notice in writing in accordance with the provisions of subparagraph 2(b) to the then registered holders of the Series 2 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 2 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior to each Series 2 Conversion Date, the Corporation shall give notice in writing to the then registered holders of the Series 2 First Preferred Shares of the Annual Fixed Dividend Rate for the
Series 1 First Preferred Shares for the next succeeding Fixed Rate Period and the Floating Quarterly Dividend Rate for the Series 2 First Preferred Shares for the next succeeding Quarterly Floating Rate Period. Such notice shall be
delivered in accordance with the provisions of subparagraph (2)(b).
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 2 First Preferred Shares of the redemption of all of the Series 2 First Preferred Shares,
then the right of a holder of Series 2 First Preferred Shares to convert such Series 2 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 2 First Preferred Shares shall not be entitled to convert their Series 2 First Preferred Shares on a Series 2 Conversion Date into Series 1 First Preferred Shares
if the Corporation determines that there would remain outstanding on a Series 2 Conversion Date less than 1,000,000 Series 1 First Preferred Shares, after having taken into account all Series 2 First Preferred Shares tendered for
conversion into Series 1 First Preferred Shares and all Series 1 First Preferred Shares tendered for conversion into Series 2 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the
provisions of subparagraph (2)(b) to all affected registered holders of the Series 2 First Preferred Shares at least seven days prior to the applicable Series 2 Conversion Date and shall issue and deliver, or cause to be delivered, prior
to such Series 2 Conversion Date, at the expense of the Corporation, to such holders of Series 2 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 2 First Preferred Shares,
certificates representing the Series 2 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 2 Conversion Date less than 1,000,000 Series 2 First Preferred Shares, after having taken into account
all Series 2 First Preferred Shares tendered for conversion into Series 1 First Preferred Shares and all Series 1 First Preferred Shares tendered for conversion into Series 2 First Preferred Shares on such Series 2 Conversion Date, then
all of the remaining outstanding Series 2 First Preferred Shares shall be converted automatically into Series 1 First Preferred Shares on the basis of one Series 1 First Preferred Share for each Series 2 First Preferred Share on the
applicable Series 2 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 2 First Preferred Shares at
least seven days prior to the Series 2 Conversion Date.
|
(e)
|
The conversion right may be exercised by a holder of Series 2 First Preferred Shares by notice in writing, in a form
satisfactory to the Corporation (the "Series 2 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 2 First Preferred Shares at the principal
office in Toronto or Calgary of such transfer agent and registrar not earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on
the 15th day preceding, a Series 2 Conversion Date. The Series 2 Conversion Notice shall indicate the number of Series 2 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the
Corporation, the election of a holder to convert is irrevocable. Except in the case where the Series 1 First Preferred Shares are in the Book-Based System, if the Series 1 First Preferred Shares are to be registered in a name or names
different from the name or names of the registered holder of the Series 2 First Preferred Shares to be converted, the Series 2 Conversion Notice shall contain written notice in form and execution satisfactory to such transfer agent
and registrar directing the Corporation to register the Series 1 First Preferred Shares in some other name or names (the "Series 1 Transferee") and stating the name or names (with addresses) and
a written declaration, if required by the Corporation or by applicable law, as to the residence and share ownership status of the Series 1 Transferee and such other matters as may be required by such law in order to determine the
entitlement of such Series 1 Transferee to hold such Series 1 First Preferred Shares.
|
|
(f) |
If all remaining outstanding Series 2 First Preferred Shares are to be converted into Series 1 First Preferred Shares on the applicable Series 2 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 2 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 2 Conversion Date into Series l First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 1 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 2 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 2 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 1 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 2 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 1 First Preferred Shares registered in the name of the holders of the Series 2 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and registrar for the Series 2 First Preferred Shares of the certificate or certificates for the Series 2 First Preferred Shares to be converted. If only a part of such
Series 2 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 2 Conversion Notice,
the Series 2 First Preferred Shares converted into Series 1 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14), shall fail to deliver to the holders of the Series 2 First Preferred Shares to be converted
share certificates representing the Series 1 First Preferred Shares into which such shares have been converted.
|
(h)
|
The obligation of the Corporation to issue Series 1 First Preferred Shares upon conversion of any Series 2 First Preferred
Shares shall be deferred during the continuance of any one or more of the following events:
|
|
(i) |
the issuing of such Series 1 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 1 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
|
(iii) |
for any reason beyond its control, the Corporation is unable to issue Series 1 First Preferred Shares or is unable to deliver Series 1 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 1 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 1 First Preferred Shares, and the Corporation shall attempt to sell such
Series 1 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 1 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 1 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 2 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 2 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 2 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Notwithstanding any other provision of these share provisions, the Corporation may deduct or withhold from any payment, distribution, issuance or delivery (whether in cash or in
shares) to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution, issuance or delivery and shall remit any such amounts to the relevant tax authority as
required. If the cash component of any payment, distribution, issuance or delivery to be made pursuant to these share provisions is less than the amount that the Corporation is so required to deduct or withhold, the Corporation shall be
permitted to deduct and withhold from any non-cash payment, distribution, issuance or delivery to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution,
issuance or delivery and to dispose of such property in order to remit any amount required to be remitted to any relevant tax authority.
|
(b)
|
Notwithstanding the foregoing, the amount of any payment, distribution, issuance or delivery made to a holder of Series 2
First Preferred Shares pursuant to these share provisions shall be considered to be the amount of the payment, distribution, issuance or delivery received by such holder plus any amount deducted or withheld pursuant to this
paragraph (13).
|
|
(c) |
Holders of Series 2 First Preferred Shares shall be responsible for all withholding and other taxes imposed under Part XIII or section 116 of the Income
Tax Act (Canada), or any successor or replacement provision of similar effect, in respect of any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions or in respect of the Series
2 First Preferred Shares and shall indemnify and hold harmless the Corporation on an after-tax basis for any such taxes imposed on any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions
or in respect of the Series 2 First Preferred Shares.
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
2 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 2 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in
such other name as the System Operator may use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 2 First Preferred Shares shall be made
only through the Book-Based System. Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 2 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the
System Operator evidencing such holder's ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 2 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 2 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 2
First Preferred Shares or the delivery of Series 1 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion, shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 2 First Preferred Shares, the cash redemption price for the Series 2 First Preferred Shares or certificates, if any, for Series 1 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 2 First Preferred Shares.
|
|
(c) |
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its responsibilities with respect to the Book-Based System and the
|
|
(d) |
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series 2 First Preferred Shares are subject to the provisions
of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (14) shall prevail.
|
|
(a) |
In these Series 3 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 4.689%; and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 3.13%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book-Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 3 First Preferred Shares held through the Book-Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
|
(ix) |
"Common Shares" means the common shares of the Corporation;
|
(x)
|
"Definitive Share" means a fully registered, typewritten, printed, lithographed,
engraved or otherwise produced share certificate representing one or more Series 3 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, December 31 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, December 31 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 3.13%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30ᵗʰ day prior to the first day of such Quarterly
Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book- Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non-callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such rate
does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected by the
Corporation as being the annual yield to maturity on such date, compounded semi-annually, that a non-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date
with a term to maturity of five years;
|
|
(xx) |
"Initial Fixed Rate Period" means the period from and including the Issue Date to, but excluding, December 31, 2024;
|
(xxi)
|
"Issue Date" means the date the Series 3 First Preferred Shares created pursuant to
these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 3 Conversion Date" means December 31, 2024, and December 31 in every fifth year thereafter;
|
|
(xxix) |
"Series 4 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 4 of the Corporation;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to"; "ranking junior to" and similar expressions refer to the order of priority in the payment of dividends or in the distribution
of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 3 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Fixed Rate Period, the holders of the Series 3 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by the Board of
Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, fixed cumulative preferential cash dividends, payable quarterly, in the amount per Series 3 First Preferred Share determined by multiplying
one quarter of the Annual Fixed Dividend Rate for such Fixed Rate Period by $25.00. Each such dividend payable to the holders of Series 3 First Preferred Shares shall be paid (less any tax required to be deducted or withheld by the
Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 3 First Preferred Shares on the First Dividend Payment Date under this
paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid or other distribution made on any securities (for the purpose of this paragraph, the "initial securities") transferred to
the Corporation in exchange for the issuance of such Series 3 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Fixed Rate Calculation Date, the Corporation shall determine the Annual Fixed Dividend Rate for the ensuing Fixed Rate Period. Each such determination shall, in the absence
of manifest error, be final and binding upon the Corporation and upon all holders of Series 3 First Preferred Shares. The Corporation shall, on each Fixed Rate Calculation Date, give written notice of the Annual Fixed Dividend Rate for
the ensuing Fixed Rate Period to the registered holders of the then outstanding Series 3 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile transmission or by ordinary unregistered first class
prepaid mail addressed to each holder of Series 3 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address of any holder not so appearing, to the address of
such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 3 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 3 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 3 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 3 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner,
|
|
(a) |
Subject to the provisions of paragraph (9), on December 31, 2024, and on December 31 in every fifth year thereafter, the Corporation, upon giving notice as herein provided, may
redeem all or any part of the Series 3 First Preferred Shares by the payment of an amount in cash for each share to be redeemed equal to $25.00 (such amount being the "redemption amount") plus all
accrued and unpaid dividends thereon to but excluding the date fixed for redemption (the whole constituting the "cash redemption price").
|
|
(b) |
In any case of redemption of Series 3 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 3 First Preferred Shares to be redeemed a written notice of the intention of the Corporation to redeem such Series 3 First
Preferred Shares. Such notice shall be mailed in a prepaid letter addressed to each such holder at the holder's address as it appears on the books of the Corporation or, in the event of the address of any such holder not so appearing, to
the last known address of such holder; provided, however, that accidental failure to give any such notice to one or more of such holders shall not affect the validity of such redemption. Such notice shall set out the cash redemption price
and the date on which redemption is to take place and, if part only of the Series 3 First Preferred Shares held by the person to whom it is addressed is to be redeemed, the number so to be redeemed. On or after the date so specified for
redemption, the Corporation shall pay or cause to be paid
|
|
(a) |
Holders of Series 3 First Preferred Shares shall have the right to convert on each Series 3 Conversion Date, subject to the provisions hereof, all or any of their Series 3 First
Preferred Shares into Series 4 First Preferred Shares on the basis of one Series 4 First Preferred Share for each Series 3 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 3 Conversion Date, give notice in writing in accordance with the provisions of subparagraph (2)(b) to the then registered holders of the Series 3 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 3 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 3 First Preferred Shares of the redemption of all of the Series 3 First Preferred Shares,
then the right of a holder of Series 3 First Preferred Shares to convert such Series 3 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 3 First Preferred Shares shall not be entitled to convert their Series 3 First Preferred Shares into Series 4 First Preferred Shares on a Series 3 Conversion Date
if the Corporation determines that there would remain outstanding on a Series 3 Conversion Date less than 1,000,000 Series 4 First Preferred Shares, after having taken into account all Series 3 First Preferred Shares tendered for
conversion into Series 4 First Preferred Shares and all Series 4 First Preferred Shares tendered for conversion into Series 3 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the
provisions of subparagraph (2)(b) to all affected registered holders of the Series 3 First Preferred Shares at least seven days prior to the applicable Series 3 Conversion Date and shall issue and deliver, or cause to be delivered, prior
to such Series 3 Conversion Date, at the expense of the Corporation, to such holders of Series 3 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 3 First Preferred Shares,
certificates representing the Series 3 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 3 Conversion Date less than 1,000,000 Series 3 First Preferred Shares, after having taken into account
all Series 3 First Preferred Shares tendered for conversion into Series 4 First Preferred Shares and all Series 4 First Preferred Shares tendered for conversion into Series 3 First Preferred Shares on such Series 3 Conversion Date, then
all of the remaining outstanding Series 3 First Preferred Shares shall be converted automatically into Series 4 First Preferred Shares on the basis of one Series 4 First Preferred Share for each Series 3 First Preferred Share on the
applicable Series 3 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 3 First Preferred Shares at
least seven days prior to the Series 3 Conversion Date.
|
|
(e) |
The conversion right may be exercised by a holder of Series 3 First Preferred Shares by notice in writing, in a form satisfactory to the Corporation (the "Series 3 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 3 First Preferred Shares at the principal office in Toronto or Calgary of such transfer agent and registrar not
earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on the 15th day preceding, a Series 3 Conversion Date. The Series 3
Conversion Notice shall indicate the number of Series 3 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the Corporation, the election of a holder to convert is irrevocable. Except in
the case where the Series 4 First Preferred Shares are in the Book-Based System, if the Series 4 First Preferred Shares are to be registered in a name or names different from the name or names of the registered holder of the Series 3
|
|
(f) |
If all remaining outstanding Series 3 First Preferred Shares are to be converted into Series 4 First Preferred Shares on the applicable Series 3 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 3 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 3 Conversion Date into Series 4 First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 4 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 3 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 3 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 4 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 3 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 4 First Preferred Shares registered in the name of the holders of the Series 3 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and registrar for the Series 3 First Preferred Shares of the certificate or certificates for the Series 3 First Preferred Shares to be converted. If only a part of such
Series 3 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 4 Conversion Notice,
the Series 3 First Preferred Shares converted into Series 4 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14), shall fail to deliver to the holders of the Series 3 First Preferred Shares to be converted
share certificates representing the Series 4 First Preferred Shares into which such shares have been converted.
|
|
(h) |
The obligation of the Corporation to issue Series 4 First Preferred Shares upon conversion of any Series 3 First Preferred Shares shall be deferred during the continuance of any one
or more of the following events:
|
|
(i) |
the issuing of such Series 4 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 4 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
(iii)
|
for any reason beyond its control, the Corporation is unable to issue Series 4 First Preferred Shares or is unable to deliver
Series 4 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 4 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of, any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 4 First Preferred Shares, and the Corporation shall attempt to sell such
Series 4 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 4 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 4 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 3 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 3 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 3 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
3 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 3 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in such other name as the System Operator may
use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 3 First Preferred Shares shall be made only through the Book-Based System.
Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 3 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the System Operator evidencing such holder's
ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 3 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 3 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 3
First Preferred Shares or the delivery of Series 4 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 3 First Preferred Shares, the cash redemption price for the Series 3 First Preferred Shares or certificates, if any, for Series 4 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 3 First Preferred Shares.
|
|
(c) |
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its responsibilities with respect to the Book-Based System and the
Corporation is unable to locate a qualified successor or the Corporation elects, or is required by applicable law, to withdraw the Series 3 First Preferred Shares from the Book-Based System, then subparagraphs (a) and (b) of this
paragraph shall no longer be applicable to the Series 3 First Preferred Shares and the Corporation shall notify Book- Entry Holders through the System Operator of the occurrence of any such event or election and of the availability of
Definitive Shares to Book-Entry Holders. Upon surrender by the System Operator of the Global Certificate, if applicable, to the transfer agent and registrar for the Series 3 First Preferred Shares accompanied by registration instructions
for re-registration, the Corporation shall execute and deliver Definitive Shares. The Corporation shall not be liable for any delay in delivering such instructions and may conclusively act and rely on and shall be protected in acting and
relying on such instructions. Upon the issuance of Definitive Shares, the Corporation shall recognize the registered holders of such Definitive Shares and the Book-Entry Shares for which such Definitive Shares have been substituted shall
be void and of no further effect.
|
(d)
|
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series
3 First Preferred Shares are subject to the provisions of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (14) shall prevail.
|
|
(a) |
In these Series 4 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 4.689%; and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 3.13%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book- Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 4 First Preferred Shares held through the Book-Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
|
(ix) |
"Common Shares" means the common shares of the Corporation;
|
(x)
|
"Definitive Share" means a fully registered, typewritten, printed, lithographed,
engraved or otherwise produced share certificate representing one or more Series 4 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, December 31 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, December 31 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005 % being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 3.13%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30th day prior to the first day of such Quarterly Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book- Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non-callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such rate
does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected by the
Corporation as being the annual yield to maturity on such date, compounded semi-annually, that a non-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date
with a term to maturity of five years;
|
|
(xx) |
"Initial Fixed Rate Period" means the period from and including the Issue Date to, but excluding, December 31, 2024;
|
(xxi)
|
"Issue Date" means the date the Series 4 First Preferred Shares created pursuant to
these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 3 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 3 of the Corporation;
|
|
(xxix) |
"Series 4 Conversion Date" means December 31, 2024, and December 31 in every fifth year thereafter;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to", "ranking junior to" and similar expressions refer to the order of priority in the payment of dividends or in the distribution
of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 4 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Quarterly Floating Rate Period, the holders of the Series 4 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by
the Board of Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, cumulative preferential cash dividends, payable quarterly, in the amount per Series 4 First Preferred Shares determined by
multiplying the Floating Quarterly Dividend Rate for such Quarterly Floating Rate Period by $25.00 and multiplying that product by a fraction, the numerator of which is the actual number of days in such Quarterly Floating Rate Period and
the denominator of which is 365 or 366, depending on the actual number of days in the applicable year. Each such dividend payable to the holders of Series 4 First Preferred Shares shall be paid (less any tax required to be deducted or
withheld by the Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 4 First Preferred Shares on the First Dividend Payment
Date under this paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid on any securities (for the purpose of this paragraph, the "initial securities") transferred to the
Corporation in exchange for the issuance of such Series 4 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Floating Rate Calculation Date, the Corporation shall determine the Floating Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period. Each such determination
shall, in the absence of manifest error, be final and binding upon the Corporation and upon all holders of Series 4 First Preferred Shares. The Corporation shall, on each Floating Rate Calculation Date, give written notice of the Floating
Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period to the registered holders of the then outstanding Series 4 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile
transmission or by ordinary unregistered first class prepaid mail addressed to each holder of Series 4 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address
of any holder not so appearing, to the address of such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 4 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 4 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 4 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 4 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner,
|
|
(a) |
Subject to the provisions of paragraph (9), the Corporation, upon giving notice as herein provided, may redeem all or any part of the Series 4 First Preferred Shares by the payment
of an amount in cash for each share to be redeemed equal to:
|
|
(i) |
$25.00 in the case of a redemption on a Series 4 Conversion Date on or after December 31, 2024, or
|
|
(ii) |
$25.50 in the case of a redemption on any other date after the Issue Date that is not a Series 4 Conversion Date,
|
|
(b) |
In any case of redemption of Series 4 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 4 First Preferred Shares to be redeemed a written notice of the intention of
|
|
(a) |
Holders of Series 4 First Preferred Shares shall have the right to convert on each Series 4 Conversion Date, subject to the provisions hereof, all or any of their Series 4 First
Preferred Shares into Series 3 First Preferred Shares on the basis of one Series 3 First Preferred Share for each Series 4 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 4 Conversion Date, give notice in writing in accordance with the provisions of subparagraph 2(b) to the then registered holders of the Series 4 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 4 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior to each Series 4 Conversion Date, the Corporation shall give notice in writing to the then registered holders of the Series 4 First Preferred Shares of the Annual Fixed Dividend Rate for the
Series 3 First Preferred Shares for the next succeeding Fixed Rate Period and the Floating Quarterly Dividend Rate for the Series 4 First Preferred Shares for the next succeeding Quarterly Floating Rate Period. Such notice shall be
delivered in accordance with the provisions of subparagraph (2)(b).
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 4 First Preferred Shares of the redemption of all of the Series 4 First Preferred Shares,
then the right of a holder of Series 4 First Preferred Shares to convert such Series 4 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 4 First Preferred Shares shall not be entitled to convert their Series 4 First Preferred Shares on a Series 4 Conversion Date into Series 3 First Preferred Shares
if the Corporation determines that there would remain outstanding on a Series 4 Conversion Date less than 1,000,000 Series 3 First Preferred Shares, after having taken into account all Series 4 First Preferred Shares tendered for
conversion into Series 3 First Preferred Shares and all Series 3 First Preferred Shares tendered for conversion into Series 4 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the
provisions of subparagraph (2)(b) to all affected registered holders of the Series 4 First Preferred Shares at least seven days prior to the applicable Series 4 Conversion Date and shall issue and deliver, or cause to be delivered, prior
to such Series 4 Conversion Date, at the expense of the Corporation, to such holders of Series 4 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 4 First Preferred Shares,
certificates representing the Series 4 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 4 Conversion Date less than 1,000,000 Series 4 First Preferred Shares, after having taken into account
all Series 4 First Preferred Shares tendered for conversion into Series 3 First Preferred Shares and all Series 3 First Preferred Shares tendered for conversion into Series 4 First Preferred Shares on such Series 4 Conversion Date, then
all of the remaining outstanding Series 4 First Preferred Shares shall be converted automatically into Series 3 First Preferred Shares on the basis of one Series 3 First Preferred Share for each Series 4 First Preferred Share on the
applicable Series 4 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 4 First Preferred Shares at
least seven days prior to the Series 4 Conversion Date.
|
(e)
|
The conversion right may be exercised by a holder of Series 4 First Preferred Shares by notice in writing, in a form
satisfactory to the Corporation (the "Series 4 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 4 First Preferred Shares at the principal
office in Toronto or Calgary of such transfer agent and registrar not earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on
the 15th day preceding, a Series 4 Conversion Date. The Series 4 Conversion Notice shall indicate the number of Series 4 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the
Corporation, the election of a holder to convert is irrevocable. Except in the case where the Series 3 First Preferred Shares are in the Book-Based System, if the Series 3 First Preferred Shares are to be registered in a name or names
different from the name or names of the registered holder of the Series 4 First Preferred Shares to be converted, the Series 4 Conversion Notice shall contain written notice in form and execution satisfactory to such transfer agent
and registrar directing the Corporation to register the Series 3 First Preferred Shares in some other name or names (the "Series 3 Transferee") and stating the name or names (with addresses) and
a written declaration, if required by the Corporation or by applicable law, as to the residence and share ownership status of the Series 3 Transferee and such other matters as may be required by such law in order to determine the
entitlement of such Series 3 Transferee to hold such Series 3 First Preferred Shares.
|
|
(f) |
If all remaining outstanding Series 4 First Preferred Shares are to be converted into Series 3 First Preferred Shares on the applicable Series 4 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 4 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 4 Conversion Date into Series 3 First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 3 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 4 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 4 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 3 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 4 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 3 First Preferred Shares registered in the name of the holders of the Series 4 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and registrar for the Series 4 First Preferred Shares of the certificate or certificates for the Series 4 First Preferred Shares to be converted. If only a part of such
Series 4 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 4 Conversion Notice,
the Series 4 First Preferred Shares converted into Series 3 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14) shall fail to deliver to the holders of the Series 4 First Preferred Shares to be converted
share certificates representing the Series 3 First Preferred Shares into which such shares have been converted.
|
(h)
|
The obligation of the Corporation to issue Series 3 First Preferred Shares upon conversion of any Series 4 First Preferred
Shares shall be deferred during the continuance of any one or more of the following events:
|
|
(i) |
the issuing of such Series 3 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 3 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
|
(iii) |
for any reason beyond its control, the Corporation is unable to issue Series 3 First Preferred Shares or is unable to deliver Series 3 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 3 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 3 First Preferred Shares, and the Corporation shall attempt to sell such
Series 3 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 3 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 3 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 4 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 4 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 4 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Notwithstanding any other provision of these share provisions, the Corporation may deduct or withhold from any payment, distribution, issuance or delivery (whether in cash or in
shares) to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution, issuance or delivery and shall remit any such amounts to the relevant tax authority as
required. If the cash component of any payment, distribution, issuance or delivery to be made pursuant to these share provisions is less than the amount that the Corporation is so required to deduct or withhold, the Corporation shall be
permitted to deduct and withhold from any non-cash payment, distribution, issuance or delivery to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution,
issuance or delivery and to dispose of such property in order to remit any amount required to be remitted to any relevant tax authority.
|
(b)
|
Notwithstanding the foregoing, the amount of any payment, distribution, issuance or delivery made to a holder of Series 4
First Preferred Shares pursuant to these share provisions shall be considered to be the amount of the payment, distribution, issuance or delivery received by such holder plus any amount deducted or withheld pursuant to this paragraph
(13).
|
|
(c) |
Holders of Series 4 First Preferred Shares shall be responsible for all withholding and other taxes imposed under Part XIII or section 116 of the Income
Tax Act (Canada), or any successor or replacement provision of similar effect, in respect of any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions or in respect of the Series
4 First Preferred Shares and shall indemnify and hold harmless the Corporation on an after-tax basis for any such taxes imposed on any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions
or in respect of the Series 4 First Preferred Shares.
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
4 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 4 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in
such other name as the System Operator may use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 4 First Preferred Shares shall be made
only through the Book-Based System. Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 4 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the
System Operator evidencing such holder's ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 4 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 4 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 4
First Preferred Shares or the delivery of Series 3 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion, shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 4 First Preferred Shares, the cash redemption price for the Series 4 First Preferred Shares or certificates, if any, for Series 3 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 4 First Preferred Shares.
|
(c)
|
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Based System and the Corporation is unable to locate a qualified successor or the Corporation elects, or is required by applicable law, to withdraw the Series 4 First Preferred Shares from the
Book- Based System, then subparagraphs (a) and (b) of this paragraph shall no longer be applicable to the Series 4 First Preferred Shares and the Corporation shall notify Book-Entry Holders through the System Operator of the
occurrence of any such event or election and of the availability of Definitive Shares to Book-Entry Holders. Upon surrender by the System Operator of the Global Certificate, if applicable, to the transfer agent and registrar for the
Series 4 First Preferred Shares accompanied by registration instructions for re-registration, the Corporation shall execute and deliver Definitive Shares. The Corporation shall not be liable for any delay in delivering such
instructions and may conclusively act and rely on and shall be protected in acting and relying on such instructions. Upon the issuance of Definitive Shares, the Corporation shall recognize the registered holders of such Definitive
Shares and the Book-Entry Shares for which such Definitive Shares have been substituted shall be void and of no further effect.
|
|
(d) |
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series 4 First Preferred Shares are subject to the provisions
of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (14) shall prevail.
|
|
(a) |
In these Series 5 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 4.591%; and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 3.57%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book- Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 5 First Preferred Shares held through the Book- Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
|
(ix) |
"Common Shares" means the common shares of the Corporation;
|
(x)
|
"Definitive Share" means a fully registered, typewritten, printed, lithographed,
engraved or otherwise produced share certificate representing one or more Series 5 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, March 31 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, March 31 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 3.57%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30th day prior to the first day of such Quarterly Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book- Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non-callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such rate
does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected by the
Corporation as being the annual yield to maturity on such date, compounded semi-annually, that anon-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date with
a term to maturity of five years;
|
|
(xx) |
"Initial Fixed Rate Period" means the period from and including the Issue Date to, but excluding, March 31, 2025;
|
(xxi)
|
"Issue Date" means the date the Series 5 First Preferred Shares created pursuant to
these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 5 Conversion Date" means March 31, 2025, and March 31 in every fifth year thereafter;
|
|
(xxix) |
"Series 6 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 6 of the Corporation;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to"; "ranking junior to" and similar expressions refer to the order of priority in the payment of dividends or in the distribution
of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 5 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Fixed Rate Period, the holders of the Series 5 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by the Board of
Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, fixed cumulative preferential cash dividends, payable quarterly, in the amount per Series 5 First Preferred Share determined by multiplying
one quarter of the Annual Fixed Dividend Rate for such Fixed Rate Period by $25.00. Each such dividend payable to the holders of Series 5 First Preferred Shares shall be paid (less any tax required to be deducted or withheld by the
Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 5 First Preferred Shares on the First Dividend Payment Date under this
paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid or other distribution made on any securities (for the purpose of this paragraph, the "initial securities") transferred to
the Corporation in exchange for the issuance of such Series 5 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Fixed Rate Calculation Date, the Corporation shall determine the Annual Fixed Dividend Rate for the ensuing Fixed Rate Period. Each such determination shall, in the absence
of manifest error, be final and binding upon the Corporation and upon all holders of Series 5 First Preferred Shares. The Corporation shall, on each Fixed Rate Calculation Date, give written notice of the Annual Fixed Dividend Rate for
the ensuing Fixed Rate Period to the registered holders of the then outstanding Series 5 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile transmission or by ordinary unregistered first class
prepaid mail addressed to each holder of Series 5 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address of any holder not so appearing, to the address of
such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 5 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 5 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 5 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 5 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner,
|
|
(a) |
Subject to the provisions of paragraph (9), on March 31, 2025, and on March 31 in every fifth year thereafter, the Corporation, upon giving notice as herein provided, may redeem all
or any part of the Series 5 First Preferred Shares by the payment of an amount in cash for each share to be redeemed equal to $25.00 (such amount being the "redemption amount") plus all accrued and
unpaid dividends thereon to but excluding the date fixed for redemption (the whole constituting the "cash redemption price").
|
|
(b) |
In any case of redemption of Series 5 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 5 First Preferred Shares to be redeemed a written notice of the intention of the Corporation to redeem such Series 5 First
Preferred Shares. Such notice shall be mailed in a prepaid letter addressed to each such holder at the holder's address as it appears on the books of the Corporation or, in the event of the address of any such holder not so appearing, to
the last known address of such holder; provided, however, that accidental failure to give any such notice to one or more of such holders shall not affect the validity of such redemption. Such notice shall set out the cash redemption price
and the date on which redemption is to take place and, if part only of the Series 5 First Preferred Shares held by the person to whom it is addressed is to be redeemed, the number so to be redeemed. On or after the date so specified for
redemption, the Corporation shall pay or cause to be paid
|
|
(a) |
Holders of Series 5 First Preferred Shares shall have the right to convert on each Series 5 Conversion Date, subject to the provisions hereof, all or any of their Series 5 First
Preferred Shares into Series 6 First Preferred Shares on the basis of one Series 5 First Preferred Share for each Series 6 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 5 Conversion Date, give notice in writing in accordance with the provisions of subparagraph (2)(b) to the then registered holders of the Series 5 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 5 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior to
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 5 First Preferred Shares of the redemption of all of the Series 5 First Preferred Shares,
then the right of a holder of Series 5 First Preferred Shares to convert such Series 5 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 5 First Preferred Shares shall not be entitled to convert their Series 5 First Preferred Shares into Series 6 First Preferred Shares on a Series 5 Conversion Date
if the Corporation determines that there would remain outstanding on a Series 5 Conversion Date less than 1,000,000 Series 6 First Preferred Shares, after having taken into account all Series 5 First Preferred Shares tendered for
conversion into Series 6 First Preferred Shares and all Series 6 First Preferred Shares tendered for conversion into Series 5 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the
provisions of subparagraph (2)(b) to all affected registered holders of the Series 5 First Preferred Shares at least seven days prior to the applicable Series 5 Conversion Date and shall issue and deliver, or cause to be delivered, prior
to such Series 5 Conversion Date, at the expense of the Corporation, to such holders of Series 5 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 5 First Preferred Shares,
certificates representing the Series 5 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 5 Conversion Date less than 1,000,000 Series 5 First Preferred Shares, after having taken into account
all Series 5 First Preferred Shares tendered for conversion into Series 6 First Preferred Shares and all Series 6 First Preferred Shares tendered for conversion into Series 5 First Preferred Shares on such Series 5 Conversion Date, then
all of the remaining outstanding Series 5 First Preferred Shares shall be converted automatically into Series 6 First Preferred Shares on the basis of one Series 6 First Preferred Share for each Series 5 First Preferred Share on the
applicable Series 5 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 5 First Preferred Shares at
least seven days prior to the Series 5 Conversion Date.
|
|
(e) |
The conversion right may be exercised by a holder of Series 5 First Preferred Shares by notice in writing, in a form satisfactory to the Corporation (the "Series 5 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 5 First Preferred Shares at the principal office in Toronto or Calgary of such transfer agent and registrar not
earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on the 15th day preceding, a Series 5 Conversion Date. The Series 5
Conversion Notice shall indicate the number of Series 5 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the Corporation, the election of a holder to convert is irrevocable. Except in
the case where the Series 6 First Preferred Shares are in the Book-Based System, if the Series 6 First Preferred Shares are to be registered in a name or names different from the name or names of the registered holder of the Series 5
|
|
(f) |
If all remaining outstanding Series 5 First Preferred Shares are to be converted into Series 6 First Preferred Shares on the applicable Series 5 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 5 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 5 Conversion Date into Series 6 First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 6 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 5 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 5 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 6 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 5 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 6 First Preferred Shares registered in the name of the holders of the Series 5 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and registrar for the Series 5 First Preferred Shares of the certificate or certificates for the Series 5 First Preferred Shares to be converted. If only a part of such
Series 5 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 6 Conversion Notice,
the Series 5 First Preferred Shares converted into Series 6 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14), shall fail to deliver to the holders of the Series 5 First Preferred Shares to be converted
share certificates representing the Series 6 First Preferred Shares into which such shares have been converted.
|
|
(h) |
The obligation of the Corporation to issue Series 6 First Preferred Shares upon conversion of any Series 5 First Preferred Shares shall be deferred during the continuance of any one
or more of the following events:
|
|
(i) |
the issuing of such Series 6 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 6 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
(iii)
|
for any reason beyond its control, the Corporation is unable to issue Series 6 First Preferred Shares or is unable to deliver
Series 6 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 6 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of, any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 6 First Preferred Shares, and the Corporation shall attempt to sell such
Series 6 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 6 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 6 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 5 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 5 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 5 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
5 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 5 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in
such other name as the System Operator may use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 5 First Preferred Shares shall be made
only through the Book-Based System. Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 5 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the
System Operator evidencing such holder's ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 5 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 5 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 5
First Preferred Shares or the delivery of Series 6 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 5 First Preferred Shares, the cash redemption price for the Series 5 First Preferred Shares or certificates, if any, for Series 6 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 5 First Preferred Shares.
|
|
(c) |
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its responsibilities with respect to the Book-Based System and the
Corporation is unable to locate a qualified successor or the Corporation elects, or is required by applicable law, to withdraw the Series 5 First Preferred Shares from the Book-Based System, then subparagraphs (a) and (b) of this
paragraph shall no longer be applicable to the Series 5 First Preferred Shares and the Corporation shall notify Book- Entry Holders through the System Operator of the occurrence of any such event or election and of the availability of
Definitive Shares to Book-Entry Holders. Upon surrender by the System Operator of the Global Certificate, if applicable, to the transfer agent and registrar for the Series 5 First Preferred Shares accompanied by registration instructions
for re-registration, the Corporation shall execute and deliver Definitive Shares. The Corporation shall not be liable for any delay in delivering such instructions and may conclusively act and rely on and shall be protected in acting and
relying on such instructions. Upon the issuance of Definitive Shares, the Corporation shall recognize the registered holders of such Definitive Shares and the Book- Entry Shares for which such Definitive Shares have been substituted shall
be void and of no further effect.
|
(d)
|
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series
5 First Preferred Shares are subject to the provisions of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (14) shall prevail.
|
|
(a) |
In these Series 6 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 4.591%, and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 3.57%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book- Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 6 First Preferred Shares held through the Book- Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
|
(ix) |
"Common Shares" means the common shares of the Corporation;
|
(x)
|
"Definitive Share" means a fully registered, typewritten, printed, lithographed,
engraved or otherwise produced share certificate representing one or more Series 6 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, March 31 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, March 31 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 3.57%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30th day prior to the first day of such Quarterly Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book-Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non-callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such rate
does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected by the
Corporation as being the annual yield to maturity on such date, compounded semi-annually, that anon-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date with
a term to maturity of five years;
|
|
(xx) |
"Initial Fixed Rate Period" means the period from and including the Issue Date to, but excluding, March 31, 2025;
|
(xxi)
|
"Issue Date" means the date the Series 6 First Preferred Shares created pursuant to
these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 5 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 5 of the Corporation;
|
|
(xxix) |
"Series 6 Conversion Date" means March 31, 2025, and March 31 in every fifth year thereafter;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to", "ranking junior to" and similar expressions refer to the order of priority in the payment of dividends or in the distribution
of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 6 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Quarterly Floating Rate Period, the holders of the Series 6 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by
the Board of Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, cumulative preferential cash dividends, payable quarterly, in the amount per Series 6 First Preferred Share determined by
multiplying the Floating Quarterly Dividend Rate for such Quarterly Floating Rate Period by $25.00 and multiplying that product by a fraction, the numerator of which is the actual number of days in such Quarterly Floating Rate Period and
the denominator of which is 365 or 366, depending on the actual number of days in the applicable year. Each such dividend payable to the holders of Series 6 First Preferred Shares shall be paid (less any tax required to be deducted or
withheld by the Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 5 First Preferred Shares on the First Dividend Payment
Date under this paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid on any securities (for the purpose of this paragraph, the "initial securities") transferred to the
Corporation in exchange for the issuance of such Series 6 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Floating Rate Calculation Date, the Corporation shall determine the Floating Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period. Each such determination
shall, in the absence of manifest error, be final and binding upon the Corporation and upon all holders of Series 6 First Preferred Shares. The Corporation shall, on each Floating Rate Calculation Date, give written notice of the Floating
Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period to the registered holders of the then outstanding Series 6 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile
transmission or by ordinary unregistered first class prepaid mail addressed to each holder of Series 6 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address
of any holder not so appearing, to the address of such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 6 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 6 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 6 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 6 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner, at the lowest price or prices at which, in the opinion of the Board of Directors, such shares are obtainable. If upon any invitation for tenders under the
provisions of this paragraph (3) more Series 6 First Preferred Shares are tendered at a price or prices acceptable to the Corporation than the Corporation is willing to purchase, the Corporation shall accept, to the extent required, the
tenders submitted at the lowest price and then, if and as required, the tenders submitted at the next progressively higher prices, and if more shares are tendered at any such price than the Corporation is prepared to purchase, then the
shares tendered at such price shall be purchased as nearly as may be pro rata (disregarding fractions) according to the number of Series 6 First Preferred Shares so tendered by each of the holders
of Series 6 First Preferred Shares who submit tenders at that price. From and after the date of purchase of any Series 6 First Preferred Shares under the provisions of this paragraph (3), the shares so purchased shall be restored to the
status of authorized but unissued shares.
|
|
(a) |
Subject to the provisions of paragraph (9), the Corporation, upon giving notice as herein provided, may redeem all or any part of the Series 6 First Preferred Shares by the payment
of an amount in cash for each share to be redeemed equal to:
|
|
(i) |
$25.00 in the case of a redemption on a Series 6 Conversion Date on or after March 31, 2025, or
|
|
(ii) |
(ii) $25.50 in the case of a redemption on any other date after the Issue Date that is not a Series 6 Conversion Date,
|
|
(b) |
In any case of redemption of Series 6 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 6 First Preferred Shares to be redeemed a written notice of the intention of
|
|
(a) |
Holders of Series 6 First Preferred Shares shall have the right to convert on each Series 6 Conversion Date, subject to the provisions hereof, all or any of their Series 6 First
Preferred Shares into Series 5 First Preferred Shares on the basis of one Series 5 First Preferred Share for each Series 6 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 6 Conversion Date, give notice in writing in accordance with the provisions of subparagraph 2(b) to the then registered holders of the Series 6 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 6 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior to each Series 6 Conversion Date, the Corporation shall give notice in writing to the then registered holders of the Series 6 First Preferred Shares of the Annual Fixed Dividend Rate for the
Series 5 First Preferred Shares for the next succeeding Fixed Rate Period and the Floating Quarterly Dividend Rate for the Series 6 First Preferred Shares for the next succeeding Quarterly Floating Rate Period. Such notice shall be
delivered in accordance with the provisions of subparagraph (2)(b).
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 6 First Preferred Shares of the redemption of all of the Series 6 First Preferred. Shares,
then the right of a holder of Series 6 First Preferred Shares to convert such Series 6 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 6 First Preferred Shares shall not be entitled to convert their Series 6 First Preferred Shares on a Series 6 Conversion Date into Series 5 First Preferred Shares
if the Corporation determines that there would remain outstanding on a Series 6 Conversion Date less than 1,000,000 Series 5 First Preferred Shares, after having taken into account all Series 6 First Preferred Shares tendered for
conversion into Series 5 First Preferred Shares and all Series 5 First Preferred Shares tendered for conversion into Series 6 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the
provisions of subparagraph (2)(b) to all affected registered holders of the Series 6 First Preferred Shares at least seven days prior to the applicable Series 6 Conversion Date and shall issue and deliver, or cause to be delivered, prior
to such Series 6 Conversion Date, at the expense of the Corporation, to such holders of Series 6 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 6 First Preferred Shares,
certificates representing the Series 6 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 6 Conversion Date less than 1,000,000 Series 6 First Preferred Shares, after having taken into account
all Series 6 First Preferred Shares tendered for conversion into Series 5 First Preferred Shares and all Series 5 First Preferred Shares tendered for conversion into Series 6 First Preferred Shares on such Series 6 Conversion Date, then
all of the remaining outstanding Series 6 First Preferred Shares shall be converted automatically into Series 5 First Preferred Shares on the basis of one Series 5 First Preferred Share for each Series 6 First Preferred Share on the
applicable Series 6 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 6 First Preferred Shares at
least seven days prior to the Series 6 Conversion Date.
|
(e)
|
The conversion right may be exercised by a holder of Series 6 First Preferred Shares by notice in writing, in a form
satisfactory to the Corporation (the "Series 6 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 6 First Preferred Shares at the principal
office in Toronto or Calgary of such transfer agent and registrar not earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on
the 15th day preceding, a Series 6 Conversion Date. The Series 6 Conversion Notice shall indicate the number of Series 6 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the
Corporation, the election of a holder to convert is irrevocable. Except in the case where the Series 5 First Preferred Shares are in the Book-Based System, i:f the Series 5 First Preferred Shares are to be registered in a name or
names different from the name or names of the registered holder of the Series 6 First Preferred Shares to be converted, the Series 6 Conversion Notice shall contain written notice in form and execution satisfactory to such transfer
agent and registrar directing the Corporation to register the Series 5 First Preferred Shares in some other name or names (the "Series 5 Transferee") and stating the name or names (with
addresses) and a written declaration, if required by the Corporation or by applicable law, as to the residence and share ownership status of the Series 5 Transferee and such other matters as may be required by such law in order to
determine the entitlement o£ such Series 5 Transferee to hold such Series 5 First Preferred Shares.
|
|
(f) |
If all remaining outstanding Series 6 First Preferred Shares are to be converted into Series 5 First Preferred Shares on the applicable Series 6 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 6 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 6 Conversion Date into Series 5 First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 5 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 6 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 6 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 5 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 6 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 5 First Preferred Shares registered in the name of the holders of the Series 6 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and registrar for the Series 6 First Preferred Shares of the certificate or certificates for the Series 6 First Preferred Shares to be converted. If only a part of such
Series 6 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 6 Conversion Notice,
the Series 6 First Preferred Shares converted into Series 5 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14) shall fail to deliver to the holders of the Series 6 First Preferred Shares to be converted
share certificates representing the Series 5 First Preferred Shares into which such shares have been converted.
|
(h)
|
The obligation of the Corporation to issue Series 5 First Preferred Shares upon conversion of any Series 6 First Preferred
Shares shall be deferred during the continuance of any one or more of the following events:
|
|
(i) |
the issuing of such Series 5 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 5 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
|
(iii) |
for any reason beyond its control, the Corporation is unable to issue Series 5 First Preferred Shares or is unable to deliver Series 5 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 5 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 5 First Preferred Shares, and the Corporation shall attempt to sell such
Series 5 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 5 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 5 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 6 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 6 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 6 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Notwithstanding any other provision of these share provisions, the Corporation may deduct or withhold from any payment, distribution, issuance or delivery (whether in cash or in
shares) to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution, issuance or delivery and shall remit any such amounts to the relevant tax authority as
required. If the cash component of any payment, distribution, issuance or delivery to be made pursuant to these share provisions is less than the amount that the Corporation is so required to deduct or withhold, the Corporation shall be
permitted to deduct and withhold from any non-cash payment, distribution, issuance or delivery to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution,
issuance or delivery and to dispose of such property in order to remit any amount required to be remitted to any relevant tax authority.
|
(b)
|
Notwithstanding the foregoing, the amount of any payment, distribution, issuance or delivery made to a holder of Series 6
First Preferred Shares pursuant to these share provisions shall be considered to be the amount of the payment, distribution, issuance or delivery received by such holder plus any amount deducted or withheld pursuant to this paragraph
(13).
|
|
(c) |
Holders of Series 6 First Preferred Shares shall be responsible for all withholding and other taxes imposed under Part XIII or section 116 of the Income
Tax Act (Canada), or any successor or replacement provision of similar effect, in respect of any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions or in respect of the Series
6 First Preferred Shares and shall indemnify and hold harmless the Corporation on an after-tax basis for any such taxes imposed on any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions
or in respect of the Series 6 First Preferred Shares.
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
6 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 6 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in
such other name as the System Operator may use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 6 First Preferred Shares shall be made
only through the Book-Based System. Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 6 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the
System Operator evidencing such holder's ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 6 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 6 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 6
First Preferred Shares or the delivery of Series 5 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion, shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 6 First Preferred Shares, the cash redemption price for the Series 6 First Preferred Shares or certificates, if any, for Series 5 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 6 First Preferred Shares.
|
(c)
|
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Based System and the Corporation is unable to locate a qualified successor or the Corporation elects, or is required by applicable law, to withdraw the Series 6 First Preferred Shares from the
Book-Based System, then subparagraphs (a) and (b) of this paragraph shall no longer be applicable to the Series 6 First Preferred Shares and the Corporation shall notify Book-Entry Holders through the System Operator of the occurrence
of any such event or election and of the availability of Definitive Shares to Book-Entry Holders. Upon surrender by the System Operator of the Global Certificate, if applicable, to the transfer agent and registrar for the Series 6
First Preferred Shares accompanied by registration instructions for re-registration, the Corporation shall execute and deliver Definitive Shares. The Corporation shall not be liable for any delay in delivering such instructions and
may conclusively act and rely on and shall be protected in acting and relying on such instructions. Upon the issuance of Definitive Shares, the Corporation shall recognize the registered holders of such Definitive Shares and the Book-
Entry Shares for which such Definitive Shares have been substituted shall be void and of no further effect.
|
|
(d) |
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series 6 First Preferred Shares are subject to the provisions
of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (14) shall prevail.
|
|
(a) |
In these Series 7 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 3.935%; and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 3.52%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book- Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 7 First Preferred Shares held through the Book- Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
|
(ix) |
"Common Shares" means the common shares of the Corporation;
|
(x)
|
"Definitive Share" means a fully registered, typewritten, printed, lithographed,
engraved or otherwise produced share certificate representing one or more Series 7 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, June 30 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, June 30 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 3.52%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30th day prior to the first day of such Quarterly Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book- Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non- callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such
rate does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected
by the Corporation as being the annual yield to maturity on such date, compounded semi-annually, that a non-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such
date with a term to maturity of five years;
|
|
(xx) |
"Initial Fixed Rate Period" means the period from and including the Issue Date to, but excluding, June 30, 2025;
|
(xxi)
|
"Issue Date" means the date the Series 7 First Preferred Shares created pursuant to
these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 7 Conversion Date" means June 30, 2025, and June 30 in every fifth year thereafter;
|
|
(xxix) |
"Series 8 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 8 of
the Corporation;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to"; "ranking
junior to" and similar expressions refer to the order of priority in the payment of dividends or in the distribution of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 7 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Fixed Rate Period, the holders of the Series 7 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by the Board of
Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, fixed cumulative preferential cash dividends, payable quarterly, in the amount per Series 7 First Preferred Share determined by multiplying
one quarter of the Annual Fixed Dividend Rate for such Fixed Rate Period by $25.00. Each such dividend payable to the holders of Series 7 First Preferred Shares shall be paid (less any tax required to be deducted or withheld by the
Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 7 First Preferred Shares on the First Dividend Payment Date under this
paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid or other distribution made on any securities (for the purpose of this paragraph, the "initial securities") transferred to
the Corporation in exchange for the issuance of such Series 7 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Fixed Rate Calculation Date, the Corporation shall determine the Annual Fixed Dividend Rate for the ensuing Fixed Rate Period. Each such determination shall, in the absence
of manifest error, be final and binding upon the Corporation and upon all holders of Series 7 First Preferred Shares. The Corporation shall, on each Fixed Rate Calculation Date, give written notice of the Annual Fixed Dividend Rate for
the ensuing Fixed Rate Period to the registered holders of the then outstanding Series 7 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile transmission or by ordinary unregistered first class
prepaid mail addressed to each holder of Series 7 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address of any holder not so appearing, to the address of
such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 7 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 7 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 7 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 7 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner,
|
|
(a) |
Subject to the provisions of paragraph (9), on June 30, 2025, and on June 30 in every fifth year thereafter, the Corporation, upon giving notice as herein provided, may redeem all
or any part of the Series 7 First Preferred Shares by the payment of an amount in cash for each share to be redeemed equal to $25.00 (such amount being the "redemption amount") plus all accrued and
unpaid dividends thereon to but excluding the date fixed for redemption (the whole constituting the "cash redemption price").
|
|
(b) |
In any case of redemption of Series 7 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 7 First Preferred Shares to be redeemed a written notice of the intention of the Corporation to redeem such Series 7 First
Preferred Shares. Such notice shall be mailed in a prepaid letter addressed to each such holder at the holder's address as it appears on the books of the Corporation or, in the event of the address of any such holder not so appearing, to
the last known address of such holder; provided, however, that accidental failure to give any such notice to one or more of such holders shall not affect the validity of such redemption. Such notice shall set out the cash redemption price
and the date on which redemption is to take place and, if part only of the Series 7 First Preferred Shares held by the person to whom it is addressed is to be redeemed, the number so to be redeemed. On or after the date so specified for
redemption, the Corporation shall pay or cause to be paid
|
|
(a) |
Holders of Series 7 First Preferred Shares shall have the right to convert on each Series 7 Conversion Date, subject to the provisions hereof, all or any of their Series 7 First
Preferred Shares into Series 8 First Preferred Shares on the basis of one Series 8 First Preferred Share for each Series 7 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 7 Conversion Date, give notice in writing in accordance with the provisions of subparagraph (2)(b) to the then registered holders of the Series 7 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 7 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior to
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 7 First Preferred Shares of the redemption of all of the Series 7 First Preferred Shares,
then the right of a holder of Series 7 First Preferred Shares to convert such Series 7 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 7 First Preferred Shares shall not be entitled to convert their Series 7 Preferred Shares into Series 8 First Preferred Shares on a Series 7 Conversion Date if the
Corporation determines that there would remain outstanding on a Series 7 Conversion Date less than 1,000,000 Series 8 First Preferred Shares, after having taken into account all Series 7 First Preferred Shares tendered for conversion into
Series 8 First Preferred Shares and all Series 8 First Preferred Shares tendered for conversion into Series 7 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the provisions of
subparagraph (2)(b) to all affected registered holders of the Series 7 First Preferred Shares at least seven days prior to the applicable Series 7 Conversion Date and shall issue and deliver, or cause to be delivered, prior to such Series
7 Conversion Date, at the expense of the Corporation, to such holders of Series 7 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 7 First Preferred Shares, certificates
representing the Series 7 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 7 Conversion Date less than 1,000,000 Series 7 First Preferred Shares, after having taken into account
all Series 7 First Preferred Shares tendered for conversion into Series 8 First Preferred Shares and all Series 8 First Preferred Shares tendered for conversion into Series 7 First Preferred Shares on such Series 7 Conversion Date, then
all of the remaining outstanding Series 7 First Preferred Shares shall be converted automatically into Series 8 First Preferred Shares on the basis of one Series 8 First Preferred Share for each Series 7 First Preferred Share on the
applicable Series 7 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 7 First Preferred Shares at
least seven days prior to the Series 7 Conversion Date.
|
|
(e) |
The conversion right may be exercised by a holder of Series 7 First Preferred Shares by notice in writing, in a form satisfactory to the Corporation (the "Series 7 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 7 First Preferred Shares at the principal office in Toronto or Calgary of such transfer agent and registrar not
earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on the 15th day preceding, a Series 7 Conversion Date. The Series 7
Conversion Notice shall indicate the number of Series 7 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the Corporation, the election of a holder to convert is irrevocable. Except in
the case where the Series 8 First Preferred Shares are in the Book-Based System, if the Series 8 First Preferred Shares are to be registered in a name or names different from the name or names of the registered holder of the Series 7
|
|
(f) |
If all remaining outstanding Series 7 First Preferred Shares are to be converted into Series 8 First Preferred Shares on the applicable Series 7 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 7 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 7 Conversion Date into Series 8 First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 8 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 7 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 7 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 8 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 7 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 8 First Preferred Shares registered in the name of the holders of the Series 7 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and registrar for the Series 7 First Preferred Shares of the certificate or certificates for the Series 7 First Preferred Shares to be converted. If only a part of such
Series 7 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 8 Conversion Notice,
the Series 7 First Preferred Shares converted into Series 8 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14), shall fail to deliver to the holders of the Series 7 First Preferred Shares to be converted
share certificates representing the Series 8 First Preferred Shares into which such shares have been converted.
|
|
(h) |
The obligation of the Corporation to issue Series 8 First Preferred Shares upon conversion of any Series 7 First Preferred Shares shall be deferred during the continuance of any one
or more of the following events:
|
|
(i) |
the issuing of such Series 8 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 8 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
(iii)
|
for any reason beyond its control, the Corporation is unable to issue Series 8 First Preferred Shares or is unable to deliver
Series 8 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 8 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of, any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 8 First Preferred Shares, and the Corporation shall attempt to sell such
Series 8 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 8 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 8 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 7 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 7 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 7 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
7 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 7 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in
such other name as the System Operator may use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 7 First Preferred Shares shall be made
only through the Book-Based System. Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 7 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the
System Operator evidencing such holder's ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 7 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 7 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 7
First Preferred Shares or the delivery of Series 8 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 7 First Preferred Shares, the cash redemption price for the Series 7 First Preferred Shares or certificates, if any, for Series 8 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 7 First Preferred Shares.
|
|
(c) |
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its responsibilities with respect to the Book-Based System and the
Corporation is unable to locate a qualified successor or the Corporation elects, or is required by applicable law, to withdraw the Series 7 First Preferred Shares from the Book-Based System, then subparagraphs (a) and (b) of this
paragraph shall no longer be applicable to the Series 7 First Preferred Shares and the Corporation shall notify Book- Entry Holders through the System Operator of the occurrence of any such event or election and of the availability of
Definitive Shares to Book-Entry Holders. Upon surrender by the System Operator of the Global Certificate, if applicable, to the transfer agent and registrar for the Series 7 First Preferred Shares accompanied by registration instructions
for re-registration, the Corporation shall execute and deliver Definitive Shares. The Corporation shall not be liable for any delay in delivering such instructions and may conclusively act and rely on and shall be protected in acting and
relying on such instructions. Upon the issuance of Definitive Shares, the Corporation shall recognize the registered holders of such Definitive Shares and the Book- Entry Shares for which such Definitive Shares have been substituted shall
be void and of no further effect.
|
(d)
|
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series
7 First Preferred Shares are subject to the provisions of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (14) shall prevail.
|
|
(a) |
In these Series 8 First Preferred Share provisions, the following expressions have the meanings indicated:
|
|
(i) |
"Annual Fixed Dividend Rate" means: (i) for the Initial Fixed Rate Period, 3.935%; and (ii) thereafter, for any Fixed Rate Period, the annual
rate of interest (expressed as a percentage rounded to the nearest one hundred-thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the Government of Canada Yield on the applicable Fixed Rate Calculation Date
and 3.52%;
|
|
(ii) |
"Bloomberg Screen GCAN5YR Page" means the display designated as page "GCAN5YR<INDEX>" on the Bloomberg Financial L.P. service or its
successor service (or such other page as may replace the "GCAN5YR<INDEX>" page on that service or its successor service) for purposes of displaying Government of Canada bond yields;
|
|
(iii) |
"Board of Directors" means the board of directors of the Corporation;
|
|
(iv) |
"Book-Based System" means the record entry securities transfer and pledge system administered by the System Operator in accordance with the
operating rules and procedures of the System Operator in force from time to time and any successor system thereof;
|
|
(v) |
"Book-Entry Holder" means the person that is the beneficial holder of a Book-Entry Share;
|
|
(vi) |
"Book-Entry Shares" means the Series 8 First Preferred Shares held through the Book-Based System;
|
|
(vii) |
"Business Day" means a day on which chartered banks are generally open for business in both Calgary, Alberta and Toronto, Ontario;
|
|
(viii) |
"CDS" means CDS Clearing and Depository Services Inc. or any successor thereof;
|
|
(ix) |
"Common Shares" means the common shares of the Corporation;
|
(x)
|
"Definitive Share" means a fully registered, typewritten, printed, lithographed,
engraved or otherwise produced share certificate representing one or more Series 8 First Preferred Shares;
|
|
(xi) |
"Dividend Payment Date" means the last day of March, June, September and December in each year; provided that, if such date is not a Business
Day, the applicable Dividend Payment Date will be the next succeeding Business Day;
|
|
(xii) |
"First Dividend Payment Date" means the first Dividend Payment Date occurring after the Issue Date;
|
|
(xiii) |
"First Preferred Shares" means the First Preferred Shares of the Corporation;
|
|
(xiv) |
"Fixed Rate Period" means: (i) first, the Initial Fixed Rate Period; (ii) second, the period from and including the day immediately following
the last day of the Initial Fixed Rate Period to, but excluding, June 30 in the fifth year thereafter; and (iii) subsequently, the period from and including the day immediately following the last day of the immediately preceding Fixed
Rate Period to, but excluding, June 30 in the fifth year thereafter;
|
|
(xv) |
"Fixed Rate Calculation Date" means, for any Fixed Rate Period, the 30th day prior to the first day of such Fixed Rate Period;
|
|
(xvi) |
"Floating Quarterly Dividend Rate" means, for any Quarterly Floating Rate Period, the annual rate of interest (expressed as a percentage
rounded to the nearest one hundred-thousandth of one percent (with 0.000005 % being rounded up)) equal to the sum of the T-Bill Rate on the applicable Floating Rate Calculation Date and 3.52%;
|
|
(xvii) |
"Floating Rate Calculation Date" means, for any Quarterly Floating Rate Period, the 30th day prior to the first day of such Quarterly Floating Rate Period;
|
|
(xviii) |
"Global Certificate" means the global certificate representing outstanding Book-Entry Shares;
|
|
(xix) |
"Government of Canada Yield" on any date means the yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar
denominated non-callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and that appears on the Bloomberg Screen GCAN5YR Page on such date; provided that if such rate
does not appear on the Bloomberg Screen GCAN5YR Page on such date, then the Government of Canada Yield shall mean the arithmetic average of the yields quoted to the Corporation by two registered Canadian investment dealers selected by the
Corporation as being the annual yield to maturity on such date, compounded semi- annually, that a non-callable Government of Canada bond would carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date
with a term to maturity of five years;
|
|
(xx) |
"Initial Fixed Rate Period" means the period from and including the Issue Date to, but excluding, June 30, 2025;
|
(xxi)
|
"Issue Date" means the date the Series 8 First Preferred Shares created pursuant to
these Articles of Amendment are issued;
|
|
(xxii) |
"Liquidation" means the liquidation, dissolution 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;
|
|
(xxiii) |
"Participants" means the participants in the Book-Based System;
|
|
(xxiv) |
"Pro Rated Dividend" means the amount determined by multiplying the amount of the dividend payable for a Quarter in which a Liquidation,
conversion or redemption is to occur by four and multiplying that product by a fraction, the numerator of which is the number of days from and including the Dividend Payment Date immediately preceding the date fixed for Liquidation,
conversion or redemption to but excluding such date and the denominator of which is 365 or 366, depending upon the actual number of days in the applicable year;
|
|
(xxv) |
"Quarter" means a three-month period ending on a Dividend Payment Date;
|
|
(xxvi) |
"Quarterly Commencement Date" means the last day of March, June, September and December in each year;
|
|
(xxvii) |
"Quarterly Floating Rate Period" means the period from and including a Quarterly Commencement Date to but excluding the next succeeding
Quarterly Commencement Date;
|
|
(xxviii) |
"Series 7 First Preferred Shares" means the Cumulative Redeemable First Preferred Shares, Series 7 of the Corporation;
|
|
(xxix) |
"Series 8 Conversion Date" means June 30, 2025, and June 30 in every fifth year thereafter;
|
|
(xxx) |
"System Operator" means CDS or its nominee or any successor thereof; and
|
|
(xxxi) |
"T-Bill Rate" means, for any Quarterly Floating Rate Period, the average yield expressed as an annual rate on 90 day Government of Canada
treasury bills, as reported by the Bank of Canada, for the most recent treasury bills auction preceding the applicable Floating Rate Calculation Date.
|
|
(b) |
The expressions "on a parity with", "ranking prior to", "ranking
junior to" and similar expressions refer to the order of priority in the payment of dividends or in the distribution of assets in the event of any Liquidation.
|
|
(c) |
If any day on which any dividend on the Series 8 First Preferred Shares is payable by the Corporation or on or by which any other action is required to be taken by the Corporation
is not a Business Day, then such dividend shall be payable and such other action may be taken on or by the next succeeding day that is a Business Day.
|
|
(a) |
During each Quarterly Floating Rate Period, the holders of the Series 8 First Preferred Shares shall be entitled to receive and the Corporation shall pay, as and when declared by
the Board of Directors, out of the moneys of the Corporation properly applicable to the payment of dividends, cumulative preferential cash dividends, payable quarterly, in the amount per Series 8 First Preferred Share determined by
multiplying the Floating Quarterly Dividend Rate for such Quarterly Floating Rate Period by $25.00 and multiplying that product by a fraction, the numerator of which is the actual number of days in such Quarterly Floating Rate Period and
the denominator of which is 365 or 366, depending on the actual number of days in the applicable year. Each such dividend payable to the holders of Series 8 First Preferred Shares shall be paid (less any tax required to be deducted or
withheld by the Corporation), if declared by the Board of Directors, on each Dividend Payment Date; provided, however, that the amount of the dividend payable to each holder of Series 8 First Preferred Shares on the First Dividend Payment
Date under this paragraph 2(a) shall be reduced by the amount, if any, of any dividend paid on any securities (for the purpose of this paragraph, the "initial securities") transferred to the
Corporation in exchange for the issuance of such Series 8 First Preferred Shares in respect of all or part of such Quarter ended on or prior to the First Dividend Payment Date pursuant to the rights, privileges, restrictions and
conditions attaching to such initial securities.
|
|
(b) |
On each Floating Rate Calculation Date, the Corporation shall determine the Floating Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period. Each such determination
shall, in the absence of manifest error, be final and binding upon the Corporation and upon all holders of Series 8 First Preferred Shares. The Corporation shall, on each Floating Rate Calculation Date, give written notice of the Floating
Quarterly Dividend Rate for the ensuing Quarterly Floating Rate Period to the registered holders of the then outstanding Series 8 First Preferred Shares. Each such notice shall be given by electronic transmission, by facsimile
transmission or by ordinary unregistered first class prepaid mail addressed to each holder of Series 8 First Preferred Shares at the last address of such holder as it appears on the books of the Corporation or, in the event of the address
of any holder not so appearing, to the address of such holder last known to the Corporation.
|
|
(c) |
If a dividend has been declared for a Quarter and a date is fixed for a Liquidation, redemption or conversion that is prior to the Dividend Payment Date for such Quarter, a Pro
Rated Dividend shall be payable on the date fixed for such Liquidation, redemption or conversion instead of the dividend declared, but if such Liquidation, redemption or conversion does not occur, then the full amount of the dividend
declared shall be payable on the originally scheduled Dividend Payment Date.
|
|
(d) |
If the dividend payable on any Dividend Payment Date is not paid in full on such date on all of the Series 8 First Preferred Shares then outstanding, such dividend or the unpaid
part of it shall be paid on a subsequent date or dates to be determined by the Board of Directors on which the Corporation shall have sufficient moneys properly applicable, under the provisions of any applicable law, to the payment of the
dividend.
|
|
(e) |
Cheques of the Corporation payable in lawful money of Canada at par at any branch of the Corporation's bankers in Canada may be issued in respect of the dividends (less any tax or
other amount required to be deducted or withheld) and payment of the cheques shall satisfy such dividends, or payments in respect of dividends may be made in any other manner determined by the Corporation.
|
(f)
|
The holders of the Series 8 First Preferred Shares shall not be entitled to any dividend other than as specified in this
paragraph (2).
|
|
(a) |
through the facilities of any stock exchange on which the Series 8 First Preferred Shares are listed,
|
|
(b) |
by invitation for tenders addressed to all the holders of record of the Series 8 First Preferred Shares outstanding, or
|
|
(c) |
in any other manner,
|
|
(a) |
Subject to the provisions of paragraph (9), the Corporation, upon giving notice as herein provided, may redeem all or any part of the Series 8 First Preferred Shares by the payment
of an amount in cash for each share to be redeemed equal to
|
|
(i) |
$25.00 in the case of a redemption on a Series 8 Conversion Date on or after June 30, 2025, or
|
|
(ii) |
$25.50 in the case of a redemption on any other date after the Issue Date that is not a Series 8 Conversion Date,
|
|
(b) |
In any case of redemption of Series 8 First Preferred Shares under the provisions of this paragraph (4), the Corporation shall, at least 30 days and not more than 60 days before the
date specified for redemption, mail to each person who at the date of mailing is a registered holder of Series 8 First Preferred Shares to be redeemed a written notice of the intention of
|
|
(a) |
Holders of Series 8 First Preferred Shares shall have the right to convert on each Series 8 Conversion Date, subject to the provisions hereof, all or any of their Series 8 First
Preferred Shares into Series 7 First Preferred Shares on the basis of one Series 7 First Preferred Share for each Series 8 First Preferred Share. The Corporation shall, not more than 60 days and not less than 30 days prior to the
applicable Series 8 Conversion Date, give notice in writing in accordance with the provisions in subparagraph 2(b) to the then registered holders of the Series 8 First Preferred Shares of the conversion right provided for in this
paragraph (5), which notice shall set out the Series 8 Conversion Date and instructions to such holders as to the method by which such conversion right may be exercised. On the 30th day prior to each Series 8 Conversion Date, the Corporation shall give notice in writing to the then registered holders of the Series 8 First Preferred Shares of the Annual Fixed Dividend Rate for the
Series 7 First Preferred Shares for the next succeeding Fixed Rate Period and the Floating Quarterly Dividend Rate for the Series 8 First Preferred Shares for the next succeeding Quarterly Floating Rate Period. Such notice shall be
delivered in accordance with the provisions of subparagraph (2)(b).
|
|
(b) |
If the Corporation gives notice as provided in paragraph (4) to the holders of the Series 8 First Preferred Shares of the redemption of all of the Series 8 First Preferred Shares,
then the right of a holder of Series 8 First Preferred Shares to convert such Series 8 First Preferred Shares shall terminate effective on the date of such notice and the Corporation shall not be required to give the notice specified in
subparagraph (a) of this paragraph (5).
|
|
(c) |
Holders of Series 8 First Preferred Shares shall not be entitled to convert their Series 8 First Preferred Shares on a Series 8 Conversion Date into Series 7 First Preferred Shares
if the Corporation determines that there would remain outstanding on a Series 8 Conversion Date less than 1,000,000 Series 7 First Preferred Shares, after having taken into account all Series 8 First Preferred Shares tendered for
conversion into Series 7 First Preferred Shares and all Series 7 First Preferred Shares tendered for conversion into Series 8 First Preferred Shares, and the Corporation shall give notice in writing thereof in accordance with the
provisions of subparagraph (2)(b) to all affected registered holders of the Series 8 First Preferred Shares at least seven days prior to the applicable Series 8 Conversion Date and shall issue and deliver, or cause to be delivered, prior
to such Series 8 Conversion Date, at the expense of the Corporation, to such holders of Series 8 First Preferred Shares who have surrendered for conversion any certificate or certificates representing Series 8 First Preferred Shares,
certificates representing the Series 8 First Preferred Shares represented by any certificate or certificates so surrendered.
|
|
(d) |
If the Corporation determines that there would remain outstanding on a Series 8 Conversion Date less than 1,000,000 Series 8 First Preferred Shares, after having taken into account
all Series 8 First Preferred Shares tendered for conversion into Series 7 First Preferred Shares and all Series 7 First Preferred Shares tendered for conversion into Series 8 First Preferred Shares on such Series 8 Conversion Date, then
all of the remaining outstanding Series 8 First Preferred Shares shall be converted automatically into Series 7 First Preferred Shares on the basis of one Series 7 First Preferred Share for each Series 8 First Preferred Share on the
applicable Series 8 Conversion Date and the Corporation shall give notice in writing thereof in accordance with the provisions of subparagraph (2)(b) to the then registered holders of such remaining Series 8 First Preferred Shares at
least seven days prior to the Series 8 Conversion Date.
|
(e)
|
The conversion right may be exercised by a holder of Series 8 First Preferred Shares by notice in writing, in a form
satisfactory to the Corporation (the "Series 8 Conversion Notice"), which notice must be received by the transfer agent and registrar for the Series 8 First Preferred Shares at the principal
office in Toronto or Calgary of such transfer agent and registrar not earlier than the 30th day prior to, but not later than 5:00 p.m. (Toronto time) on
the 15th day preceding, a Series 8 Conversion Date. The Series 8 Conversion Notice shall indicate the number of Series 8 First Preferred Shares to be converted. Once received by the transfer agent and registrar on behalf of the
Corporation, the election of a holder to convert is irrevocable. Except in the case where the Series 7 First Preferred Shares are in the Book-Based System, if the Series 7 First Preferred Shares are to be registered in a name or names
different from the name or names of the registered holder of the Series 8 First Preferred Shares to be converted, the Series 8 Conversion Notice shall contain written notice in form and execution satisfactory to such transfer agent
and registrar directing the Corporation to register the Series 7 First Preferred Shares in some other name or names (the "Series 7 Transferee") and stating the name or names (with addresses) and
a written declaration, if required by the Corporation or by applicable law, as to the residence and share ownership status of the Series 7 Transferee and such other matters as may be required by such law in order to determine the
entitlement of such Series 7 Transferee to hold such Series 7 First Preferred Shares.
|
|
(f) |
If all remaining outstanding Series 8 First Preferred Shares are to be converted into Series 7 First Preferred Shares on the applicable Series 8 Conversion Date as provided for in
subparagraph (d) of this paragraph (5), the Series 8 First Preferred Shares that holders have not previously elected to convert shall be converted on the Series 8 Conversion Date into Series 7 First Preferred Shares and the holders
thereof shall be deemed to be holders of Series 7 First Preferred Shares at 5:00 p.m. (Toronto time) on the Series 8 Conversion Date and shall be entitled, upon surrender during regular business hours at the principal office in Toronto or
Calgary of the transfer agent and registrar of the Corporation of the certificate or certificates representing Series 7 First Preferred Shares not previously surrendered for conversion, to receive a certificate or certificates
representing the same number of Series 7 First Preferred Shares in the manner and subject to the provisions of this paragraph (5) and paragraph (14).
|
|
(g) |
Subject to subparagraph (h) of this paragraph (5) and paragraph (14), as promptly as practicable after the Series 8 Conversion Date the Corporation shall deliver or cause to be
delivered certificates representing the Series 7 First Preferred Shares registered in the name of the holders of the Series 8 First Preferred Shares to be converted, or as such holders shall have directed, on presentation and surrender at
the principal office in Toronto or Calgary of the transfer agent and registrar for the Series 8 First Preferred Shares of the certificate or certificates for the Series 8 First Preferred Shares to be converted. If only a part of such
Series 8 First Preferred Shares represented by any certificate shall be converted, a new certificate for the balance shall be issued at the expense of the Corporation. From and after the date specified in any Series 8 Conversion Notice,
the Series 8 First Preferred Shares converted into Series 7 First Preferred Shares shall cease to be outstanding and shall be restored to the status of authorized but unissued shares, and the holders thereof shall cease to be entitled to
dividends and shall not be entitled to exercise any of the rights of holders in respect thereof unless the Corporation, subject to paragraph (14), shall fail to deliver to the holders of the Series 8 First Preferred Shares to be converted
share certificates representing the Series 7 First Preferred Shares into which such shares have been converted.
|
(h)
|
The obligation of the Corporation to issue Series 7 First Preferred Shares upon conversion of any Series 8 First Preferred
Shares shall be deferred during the continuance of any one or more of the following events:
|
|
(i) |
the issuing of such Series 7 First Preferred Shares is prohibited pursuant to any agreement or arrangement entered into by the Corporation to assure its solvency or continued
operation;
|
|
(ii) |
the issuing of such Series 7 First Preferred Shares is prohibited by law or by any regulatory or other authority having jurisdiction over the Corporation that is acting in
conformity with law; or
|
|
(iii) |
for any reason beyond its control, the Corporation is unable to issue Series 7 First Preferred Shares or is unable to deliver Series 7 First Preferred Shares.
|
|
(i) |
The Corporation reserves the right not to deliver Series 7 First Preferred Shares to any person that the Corporation or its transfer agent and registrar has reason to believe is a
person whose address is in, or that the Corporation or its transfer agent and registrar has reason to believe is a resident of any jurisdiction outside Canada if such delivery would require the Corporation to take any action to comply
with the securities laws of such jurisdiction. In those circumstances, the Corporation shall hold, as agent of any such person, all or the relevant number of Series 7 First Preferred Shares, and the Corporation shall attempt to sell such
Series 7 First Preferred Shares to parties other than the Corporation and its affiliates on behalf of any such person. Such sales (if any) shall be made at such times and at such prices as the Corporation, in its sole discretion, may
determine. The Corporation shall not be subject to any liability for failure to sell Series 7 First Preferred Shares on behalf of any such person at all or at any particular price or on any particular day. The net proceeds received by the
Corporation from the sale of any such Series 7 First Preferred Shares (less any tax or other amount required to be deducted or withheld) shall be delivered to any such person, after deducting the costs of sale, by cheque or in any other
manner determined by the Corporation.
|
|
(a) |
declare, pay or set apart for payment any dividends (other than stock dividends in shares of the Corporation ranking junior to the Series 8 First Preferred Shares) on the Common
Shares or any other shares of the Corporation ranking junior to the Series 8 First Preferred Shares with respect to payment of dividends; or
|
|
(b) |
call for redemption, purchase, reduce the stated capital maintained by the Corporation or otherwise pay for any shares of the Corporation ranking junior to the Series 8 First
Preferred Shares with respect to repayment of capital or with respect to payment of dividends;
|
|
(a) |
Notwithstanding any other provision of these share provisions, the Corporation may deduct or withhold from any payment, distribution, issuance or delivery (whether in cash or in
shares) to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution, issuance or delivery and shall remit any such amounts to the relevant tax authority as
required. If the cash component of any payment, distribution, issuance or delivery to be made pursuant to these share provisions is less than the amount that the Corporation is so required to deduct or withhold, the Corporation shall be
permitted to deduct and withhold from any non-cash payment, distribution, issuance or delivery to be made pursuant to these share provisions any amounts required by law to be deducted or withheld from any such payment, distribution,
issuance or delivery and to dispose of such property in order to remit any amount required to be remitted to any relevant tax authority.
|
(b)
|
Notwithstanding the foregoing, the amount of any payment, distribution, issuance or delivery made to a holder of Series 8
First Preferred Shares pursuant to these share provisions shall be considered to be the amount of the payment, distribution, issuance or delivery received by such holder plus any amount deducted or withheld pursuant to this
paragraph (13).
|
|
(c) |
Holders of Series 8 First Preferred Shares shall be responsible for all withholding and other taxes imposed under Part XIII or section 116 of the Income
Tax Act (Canada), or any successor or replacement provision of similar effect, in respect of any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions or in respect of the Series
8 First Preferred Shares and shall indemnify and hold harmless the Corporation on an after-tax basis for any such taxes imposed on any payment, distribution, issuance or delivery made or credited to them pursuant to these share provisions
or in respect of the Series 8 First Preferred Shares.
|
|
(a) |
Subject to the provisions of subparagraphs (b) and (c) of this paragraph (14) and notwithstanding the provisions of paragraphs (1) through (13) of these share provisions, the Series
8 First Preferred Shares shall be evidenced by a single fully registered Global Certificate representing the aggregate number of Series 8 First Preferred Shares issued by the Corporation which shall be held by, or on behalf of, the System
Operator as custodian of the Global Certificate for the Participants or issued to the System Operator in uncertificated form and, in either case, registered in the name of "CDS & Co." (or in
such other name as the System Operator may use from time to time as its nominee for purposes of the Book-Based System), and registrations of ownership, transfers, surrenders and conversions of Series 8 First Preferred Shares shall be made
only through the Book-Based System. Accordingly, subject to subparagraph (c) of this paragraph (14), no beneficial holder of Series 8 First Preferred Shares shall receive a certificate or other instrument from the Corporation or the
System Operator evidencing such holder's ownership thereof, and no such holder shall be shown on the records maintained by the System Operator except through a book-entry account of a Participant acting on behalf of such holder.
|
|
(b) |
Notwithstanding the provisions of paragraphs (1) through (13), so long as the System Operator is the registered holder of the Series 8 First Preferred Shares:
|
|
(i) |
the System Operator shall be considered the sole owner of the Series 8 First Preferred Shares for the purposes of receiving notices or payments on or in respect of the Series 8
First Preferred Shares or the delivery of Series 7 First Preferred Shares and certificates, if any, therefor upon the exercise of rights of conversion; and
|
|
(ii) |
the Corporation, pursuant to the exercise of rights of redemption or conversion, shall deliver or cause to be delivered to the System Operator, for the benefit of the beneficial
holders of the Series 8 First Preferred Shares, the cash redemption price for the Series 8 First Preferred Shares or certificates, if any, for Series 7 First Preferred Shares against delivery to the Corporation's account with the System
Operator of such holders' Series 8 First Preferred Shares.
|
(c)
|
If the Corporation determines that the System Operator is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Based System and the Corporation is unable to locate a qualified successor or the Corporation elects, or is required by applicable law, to withdraw the Series 8 First Preferred Shares from the
Book-Based System, then subparagraphs (a) and (b) of this paragraph shall no longer be applicable to the Series 8 First Preferred Shares and the Corporation shall notify Book-Entry Holders through the System Operator of the occurrence
of any such event or election and of the availability of Definitive Shares to Book- Entry Holders. Upon surrender by the System Operator of the Global Certificate, if applicable, to the transfer agent and registrar for the Series 8
First Preferred Shares accompanied by registration instructions for re-registration, the Corporation shall execute and deliver Definitive Shares. The Corporation shall not be liable for any delay in delivering such instructions and
may conclusively act and rely on and shall be protected in acting and relying on such instructions. Upon the issuance of Definitive Shares, the Corporation shall recognize the registered holders of such Definitive Shares and the
Book-Entry Shares for which such Definitive Shares have been substituted shall be void and of no further effect.
|
|
(d) |
The provisions of paragraphs (1) through (13) and the exercise of rights of redemption and conversion with respect to Series 8 First Preferred Shares are subject to the provisions
of this paragraph (14), and to the extent that there is any inconsistency or conflict between such provisions, the provisions of this paragraph (1) shall prevail.
|