As filed with the Securities and Exchange Commission on August 4, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SUNCOR ENERGY INC.
(Exact name of registrant as specified in its charter)
Canada |
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98-0343201 |
(State or other jurisdiction of organization) |
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(IRS Employer Identification Number) |
112
- 4
th
Avenue S.W.
Box 38
Calgary, Alberta
Canada T2P 2V5
(403) 269-8100
(Address of Principal Executive Offices including Zip Code)
Suncor Energy Inc. Stock Option Plan
(Full title of the Plan)
CT
Corporation System
111 Eighth Avenue
New York, NY 10011
(212) 894-8940
(Name and address of agent for service)
Copies To:
Terrence J. Hopwood |
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Adam M. Givertz |
Senior Vice President and General Counsel |
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Shearman & Sterling LLP |
Suncor Energy Inc. |
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Commerce Court West |
112 - 4 th Avenue S.W. |
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Suite 4405, P.O. Box 247 |
Box 38 |
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Toronto, Ontario M5L 1E8 |
Calgary, Alberta |
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(416) 360-8484 |
Canada T2P 2V5 |
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(403) 269-8100 |
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer x |
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Accelerated filer o |
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Non-accelerated filer o |
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Smaller reporting company o |
(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
Title
of securities
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Amount
to be
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Proposed
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Proposed
maximum
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Amount
of
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Common Shares |
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500,000 |
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$ |
31.06 |
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$ |
15,527,500 |
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$ |
867 |
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(1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement covers, in addition to the number of Common Shares stated above, such additional Common Shares to be offered or issued to prevent dilution as a result of future stock dividends or stock splits. In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Suncor Energy Inc. Stock Option Plan. |
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(2) |
Estimated pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act solely for the purpose of calculating the registration fee for Common Shares to be issued upon exercise of options that have yet to be granted under the Suncor Energy Inc. Stock Option Plan and is based on the average of the high and low prices for the Common Shares quoted on The New York Stock Exchange on July 29, 2009. |
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(3) |
Pursuant to Rule 457(p) under the Securities Act, the amount of the registration fee is being offset by $867, which represents a portion of the dollar amount of the registration fee previously paid by Suncor Energy Inc. (previously Petro-Canada prior to its amalgamation with Suncor Energy Inc.) with respect to $2,500,000,000 of unsold securities registered on Form F-9 (File No. 333-149879), filed on March 24, 2008 with respect to which the offering has been terminated by a post-effective amendment filed on August 4, 2009. Accordingly, the adjusted registration fee for this Form S-8 is $0. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration statement:
(a) The Registrants annual report on Form 40-F filed with the Securities Exchange Commission (the Commission) on March 2, 2009 (Commission File No. 1-12384).
(b) The Registrants reports on Form 6-K furnished to the Commission on January 20, 2009, March 2, 2009, April 1, 2009, April 23, 2009, May 1, 2009 and July 30, 2009.
(c) The description of the Registrants securities contained in the Registrants Registration Statement on Form 8-A (Commission File No. 1-12384) filed under the Securities Exchange Act of 1934, as amended (the Exchange Act), on March 20, 1997, as updated by the description contained under the heading Part I The ArrangementDetails of the ArrangementShare Capital of Amalco in the Joint Information Circular and Proxy Statement, furnished as Exhibit 99.1 to the Registrants current report on Form 6-K (Commission File No. 1-12384), furnished to the Commission on May 1, 2009, and including any other amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of the filing of such documents. Also, we may incorporate by reference our future reports on Form 6-K by stating in those Form 6-Ks that they are being incorporated by reference into this registration statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Under the Canada Business Corporations Act (the Act), a corporation may indemnify a director or officer of the corporation, a former director of the corporation, or another individual who acts or acted at the corporations request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity, if (a) the individual acted honestly and in good faith with a view to the best interests of the corporation, or as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporations request, and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individuals conduct was lawful. Where that action is by or on behalf of the corporation or that body corporate, the approval of the court is also required.
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In accordance with the Act, the By-laws of the Registrant provide that the Registrant shall indemnify a director or officer of the Registrant, a former director or officer of the Registrant or a person who acts or acted at the Registrants request as a director or officer, or in a similar capacity, of another entity, and the heirs and legal representatives of such a person, to the extent permitted under the Act.
A policy of directors and officers liability insurance is maintained by the Registrant which insures directors and officers of the Registrant for losses as a result of claims based upon their acts or omissions as directors and officers, including liabilities under the Securities Act, and also reimburses the Registrant for payments made pursuant to the indemnity provisions under the Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See attached Exhibit list.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided , however , that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a
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new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Calgary, in the province of Alberta, on August 4, 2009.
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SUNCOR ENERGY INC. |
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By: |
/s/ Arlene Strom |
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Name: Arlene Strom |
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Title: Assistant Corporate Secretary |
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POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of Terrence J. Hopwood and Janice B. Odegaard as his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Richard L. George |
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President and Chief Executive |
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August 4, 2009 |
Richard L. George |
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Officer and Director
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/s/ Bart Demosky |
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Chief Financial Officer |
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August 4, 2009 |
Bart Demosky |
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(Principal Financial
and
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/s/ John T. Ferguson |
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Chairman |
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August 4, 2009 |
John T. Ferguson |
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/s/ Mel E. Benson |
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Director |
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August 4, 2009 |
Mel E. Benson |
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/s/ Brian A. Canfield |
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Director |
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August 4, 2009 |
Brian A. Canfield |
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/s/ W. Douglas Ford |
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Director |
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August 4, 2009 |
W. Douglas Ford |
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/s/ John R. Huff |
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Director |
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August 4, 2009 |
John R. Huff |
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/s/ Michael W. OBrien |
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Director |
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August 4, 2009 |
Michael W. OBrien |
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/s/ Eira M. Thomas |
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Director |
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August 4, 2009 |
Eira M. Thomas |
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act, the authorized representative of the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, solely in its capacity as the duly authorized representative of the Registrant in the United States on August 4, 2009.
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SUNCOR ENERGY (USA) INC. |
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Authorized Representative in the United States |
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By: |
/s/ Janice B. Odegaard |
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Name: Janice B. Odegaard |
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Title: Assistant Secretary |
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EXHIBITS
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Title of Exhibit |
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4.1 |
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Articles of Arrangement of the Registrant. |
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4.2 |
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By-law No. 1 of the Registrant (incorporated by reference from Exhibit 3.2 to the Registrants Registration Statement on Form S-8 (File No. 333-149532) filed with the Securities and Exchange Commission on March 4, 2008). |
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4.3 |
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Suncor Energy Inc. Stock Option Plan dated August 1, 2009. |
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5 |
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Opinion of Arlene Strom, Assistant Corporate Secretary of the Registrant, as to the legality of the Common Shares being registered. |
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23.1 |
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Consent of PricewaterhouseCoopers LLP. |
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23.2 |
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Consent of Arlene Strom, Assistant Corporate Secretary of the Registrant (included in Exhibit 5). |
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23.3 |
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Consent of GLJ Petroleum Consultants Ltd. |
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24 |
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Power of Attorney (included on the signatures page to this Registration Statement). |
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Exhibit 4.1
ARTICLES OF ARRANGEMENT OF THE REGISTRANT
Industry Canada Industrie Canada
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Industry Canada |
Industrie Canada |
FORM 14.1 |
FORMULAIRE 14.1 |
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Canada
Business
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Loi
canadienne sur les
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ARTICLES OF ARRANGEMENT (SECTION 192) |
CLAUSES DARRANGEMENT (ARTICLE 192) |
11 -- In accordance with the order approving the arrangement - Conformément aux termes de lordonnance approuvant larrangement
SCHEDULE 1 TO
ARTICLES OF ARRANGEMENT
9. Name of other corporations involved, if applicable:
7208782 Canada Inc. |
720878-2 |
4525752 Canada Inc. |
452575-2 |
7208821 Canada Inc. |
720882-1 |
7208863 Canada Inc. |
720886-3 |
SCHEDULE 2 TO
ARTICLES OF ARRANGEMENT
1. NAME OF THE AMALGAMATED CORPORATION:
Suncor Energy Inc.
2. THE PROVINCE OR TERRITORY IN CANADA WHERE THE REGISTERED OFFICE IS TO BE SITUATED:
Alberta
3. THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS AUTHORIZED TO ISSUE:
Suncor Energy Inc. is authorised to issue: (A) an unlimited number of preferred shares issuable in series designated as Senior Preferred Shares; (B) an unlimited number of preferred shares issuable is series designated as Junior Preferred Shares; and (C) an unlimited number of common shares. The rights, privileges, restrictions and conditions attaching to shares of Suncor Energy Inc. shall be as set forth in Schedule A to the Plan of Arrangement.
4. RESTRICTIONS, IF ANY, ON SHARE TRANSFERS:
The restrictions on the transfer of shares of Suncor Energy Inc. shall be as set forth in Schedule B to the Plan of Arrangement.
5. NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS:
Minimum: 8 Maximum: 15
6. RESTRICTIONS, IF ANY, ON BUSINESS THE CORPORATION MAY CARRY ON:
There shall be no restrictions on the business Suncor Energy Inc. may carry on or on the powers it may exercise.
7. OTHER PROVISIONS, IF ANY
See Schedule C to the Plan of Arrangement.
8. THE AMALGAMATION HAS BEEN APPROVED PURSUANT TO THAT SECTION OR SUBSECTION OF THE ACT WHICH IS INDICATED AS FOLLOWS:
Section 192
9. NAME OF THE AMALGAMATING CORPORATIONS AND THEIR CORPORATE ACCESS NUMBERS ARE:
Suncor Energy Inc. |
2417693 |
Petro-Canada |
2676125 |
7208782 Canada Inc. |
720878-2 |
4525752 Canada Inc. |
452575-2 |
7208821 Canada Inc. |
720882-1 |
7208863 Canada Inc. |
720886-3 |
SCHEDULE 1.1 (a)
PLAN OF ARRANGEMENT
INVOLVING
SUNCOR ENERGY INC., PETRO-CANADA,
CERTAIN SUBSIDIARIES OF
SUNCOR ENERGY INC. AND PETRO-CANADA,
THE SHAREHOLDERS OF SUNCOR ENERGY INC.
AND THE SHAREHOLDERS OF PETRO-CANADA
made pursuant to
Section 192 of the Canada Business Corporations Act
ARTICLE I
INTERPRETATION
1.1 Definitions
In this Plan of Arrangement the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings:
Aggregate Petro-Canada Shareholder Elected Amount has the meaning set forth in subsection 2.3(b) of this Plan of Arrangement;
Aggregate Suncor Shareholder Elected Amount has the meaning set forth in subsection 2.4(b) of this Plan of Arrangement;
Amalco means the corporation continuing as a successor to the Amalgamating Corporations under the CBCA following the effectiveness of the Arrangement contemplated hereby;
Amalco Shares means common shares in the capital of Amalco;
Amalgamating Corporations means Suncor, Petro-Canada, Subco 1, Subco 2, Subco 3 and Subco 4;
Arrangement means the arrangement under section 192 of the CBCA on the terms and subject to the conditions set out in this Plan of Arrangement, subject to any amendments or variations thereto made in accordance with Section 8.3 of the Arrangement Agreement or ARTICLE V hereof or made at the direction of the Court in the Final Order;
Arrangement Agreement means the agreement made as of March 22, 2009 between Suncor and Petro-Canada, as amended, supplemented or restated in accordance therewith prior to the Effective Date, providing for, among other things, the Arrangement;
Arrangement Resolution means the special resolution passed by the Suncor Shareholders at the Suncor Shareholders Meeting and by the Petro-Canada Shareholders at the Petro-Canada Shareholders Meeting substantially in the form of Schedule 1.1(b) to the Arrangement Agreement;
Articles of Arrangement means the articles of arrangement of Suncor and Petro-Canada in respect of the Arrangement, required by the CBCA to be sent to the Director after the Final Order is made;
associates has the meaning assigned to such term in section 9 of the Petro-Canada Public Participation Act;
business day means any day, other than a Saturday, a Sunday or a statutory holiday, in the Province of Alberta;
CBCA means the Canada Business Corporations Act, R.S.C. 1995, c. C-44, as amended;
Certificate means the certificate of arrangement giving effect to the Arrangement, issued pursuant to subsection 192(7) of the CBCA after the Articles of Arrangement have been filed;
Court means the Court of Queens Bench of Alberta;
Depositary means Computershare Investor Services Inc. at its offices set out in the Letter of Transmittal and Election Form;
Director means the Director appointed pursuant to section 260 of the CBCA;
Dissenting Petro-Canada Shareholder means a Petro-Canada Shareholder who dissents in respect of the Arrangement in strict compliance with Section 3.2;
Dissenting Suncor Shareholder means a Suncor Shareholder who dissents in respect of the Arrangement in strict compliance with Section 3.1;
Effective Date means the date shown in the Certificate issued by the Director;
Effective Time means 12:01 a.m. (Calgary time) on the Effective Date;
Eligible Petro-Canada Shareholder means a Petro-Canada Shareholder who is an individual and not a corporation, partnership or trust and who is not a Non-Resident Petro-Canada Shareholder or a Dissenting Petro-Canada Shareholder;
Eligible Suncor Shareholder means a Suncor Shareholder who is an individual and not a corporation, partnership or trust and who is not a Non-Resident Suncor Shareholder or a Dissenting Suncor Shareholder;
Excess Shares has the meaning set forth in subsection 2.2(f)(xv)(H)(I) of this Plan of Arrangement;
Filed Letter of Transmittal means a duly completed Letter of Transmittal and Election Form deposited with the Depositary on or before the Petro-Canada Election Deadline, in respect of a Letter of Transmittal and Election Form filed by a Petro-Canada Shareholder, or the Suncor Election Deadline, in respect of a Letter of Transmittal and Election Form filed by a Suncor Shareholder;
Final Order means the order of the Court approving the Arrangement, as such order may be amended at any time prior to the Effective Date or, if appealed, then unless such appeal is withdrawn or denied, as affirmed;
Interim Order means an order of the Court, as the same may be amended, containing declarations and directions in respect of the notice to be given and the conduct of the Suncor Shareholders Meeting and the Petro-Canada Shareholders Meeting with respect to the Arrangement;
Letter of Transmittal and Election Form means the Letter of Transmittal and Election Form for use by Suncor Shareholders and Petro-Canada Shareholders to be delivered in connection with the Arrangement;
Non-Resident means a person (within the meaning of the Tax Act but, for greater certainty, not including a partnership) who is not resident in Canada for the purposes of the Tax Act;
Non-Resident Petro-Canada Shareholder means a Petro-Canada Shareholder that is a Non-Resident;
Non-Resident Suncor Shareholder means a Suncor Shareholder that is a Non-Resident;
Original Petro-Canada Shareholder Elected Amount has the meaning set forth in subsection 2.3(b) of this Plan of Arrangement;
Original Suncor Shareholder Elected Amount has the meaning set forth in subsection 2.4(b) of this Plan of Arrangement;
Person includes an individual, firm, trust, partnership, association, corporation, joint venture, trustee, executor, administrator, legal representative or government (including any Governmental Entity);
Petro-Canada means Petro-Canada, a corporation existing under the CBCA;
Petro-Canada Electing Shareholders means Petro-Canada Shareholders who are Eligible Petro-Canada Shareholders and who, subject to pro-ration under subsection 2.3(b), elect to transfer all (but not less than all) of their Petro-Canada Shares to Subco 2 in consideration for Subco 1 Non-Voting Shares in accordance with subsection 2.3 of this Plan of Arrangement;
Petro-Canada Election Deadline means 4:30 p.m. (Calgary time) on the date specified in the Letter of Transmittal and Election Form;
Petro-Canada Exchange Ratio means 1.28 Amalco Shares for each Petro-Canada Share or Subco 1 Non-Voting Share, as the case may be;
Petro-Canada Shareholder means a holder of Petro-Canada Shares;
Petro-Canada Shareholders Meeting means such meeting or meetings of the Petro-Canada Shareholders, including any adjournment thereof, that is to be convened as provided by the Interim Order to consider, and if deemed advisable approve, the Arrangement;
Petro-Canada Shares means the common shares in the capital of Petro-Canada issued and outstanding immediately prior to the Effective Date;
Petro-Canada Transfer Limit has the meaning set forth in subsection 2.3(b) of this Plan of Arrangement;
Reduced Petro-Canada Shareholder Elected Amount has the meaning set forth in subsection 2.3(b) of this Plan of Arrangement;
Reduced Suncor Shareholder Elected Amount has the meaning set forth in subsection 2.4(b) of this Plan of Arrangement;
Subco 1 means 7208782 Canada Inc., a corporation incorporated under the CBCA and a subsidiary of Suncor;
Subco 1 Non-Voting Shares means the Class B common non-voting shares in the capital of Subco 1;
Subco 2 means 4525752 Canada Inc., a corporation incorporated under the CBCA and a subsidiary of Subco 1;
Subco 2 Shares means the common shares in the capital of Subco 2;
Subco 3 means 7208821 Canada Inc., a corporation incorporated under the CBCA and a subsidiary of Petro-Canada;
Subco 3 Non-Voting Shares means the Class B common non-voting shares in the capital of Subco 3;
Subco 4 means 7208863 Canada Inc., a corporation incorporated under the CBCA and a subsidiary of Subco 3;
Subco 4 Shares means common shares in the capital of Subco 4;
Suncor means Suncor Energy Inc., a corporation existing under the CBCA;
Suncor Electing Shareholders means Suncor Shareholders who are Eligible Suncor Shareholders and who, subject to pro-ration under subsection 2.4(b), elect to transfer all (but not less than all) of their Suncor Shares to Subco 4 in consideration for Subco 3 Non-Voting Shares in accordance with subsection 2.4 of this Plan of Arrangement;
Suncor Election Deadline means 4:30 p.m. (Calgary time) on the date specified in the Letter of Transmittal and Election Form;
Suncor Exchange Ratio means 1.00 Amalco Share for each Suncor Share or Subco 3 Non-Voting Share, as the case may be;
Suncor Shareholder means a holder of Suncor Shares;
Suncor Shareholder Rights Plan means Suncors amended and restated Shareholder Rights Plan dated April 24, 2008;
Suncor Shareholders Meeting means such meeting or meetings of the Suncor Shareholders, including any adjournment thereof, that is to be convened as provided by the Interim Order to consider, and if deemed advisable approve, the Arrangement;
Suncor Shares means the common shares in the capital of Suncor issued and outstanding immediately prior to the Effective Date;
Suncor SRP Rights means rights under the Suncor Shareholder Rights Plan;
Suncor Transfer Limit has the meaning set forth in subsection 2.4(b) of this Plan of Arrangement; and
Tax Act means the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended, including the regulations promulgated thereunder, as amended from time to time.
Any capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Arrangement Agreement.
1.2 Sections and Headings
The division of this Plan of Arrangement into sections and the insertion of headings are for reference purposes only and shall not affect the interpretation of this Plan of Arrangement. Unless otherwise indicated, any reference in this Plan of Arrangement to a section or a schedule refers to the specified section of or schedule to this Plan of Arrangement.
1.3 Number and Gender
In this Plan of Arrangement, unless the contrary intention appears, words importing the singular include the plural and vice versa; and words importing gender shall include all genders.
ARTICLE II
ARRANGEMENT
2.1 Binding Effect
This Plan of Arrangement will become effective at, and be binding at and after, the Effective Time on: (a) the Amalgamating Corporations; (b) all Suncor Shareholders; and (c) all Petro-Canada Shareholders.
2.2 Arrangement
Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(a) the Suncor Shareholder Rights Plan shall terminate and cease to have any further force or effect and the Suncor SRP Rights shall be cancelled;
(b) subject to Section 2.3, the Petro-Canada Shares held by each Petro-Canada Electing Shareholder who so elects in a Filed Letter of Transmittal with respect to such Petro-Canada Shares shall be sold, assigned and transferred by such Petro-Canada Electing Shareholder directly to Subco 2, as principal, free of any claims (in consideration for Subco 1 Non-Voting Shares to be issued by Subco 1 to the Petro-Canada Electing Shareholder in accordance with subsection 2.2(c));
(c) Subco 1 shall issue Subco 1 Non-Voting Shares to the Petro-Canada Electing Shareholders whose Petro-Canada Shares have been transferred to Subco 2 in accordance with subsection 2.2(b) on the basis of one Subco 1 Non-Voting Share for each Petro-Canada Share so sold, assigned and transferred to Subco 2 and Subco 2 shall issue an equal number of Subco 2 Shares to Subco 1 in consideration for Subco 1 issuing the Subco 1 Non-Voting Shares to the Petro-Canada Electing Shareholders;
(d) subject to Section 2.4, the Suncor Shares held by each Suncor Electing Shareholder who so elects in a Filed Letter of Transmittal with respect to such Suncor Shares shall be sold, assigned and transferred by such Suncor Electing Shareholder directly to Subco 4, as principal, free of any claims (in consideration for Subco 3 Non-Voting Shares to be issued by Subco 3 to the Suncor Electing Shareholder in accordance with subsection 2.2(e));
(e) Subco 3 shall issue Subco 3 Non-Voting Shares to the Suncor Electing Shareholders whose Suncor Shares have been transferred to Subco 4 in accordance with subsection 2.2(d) on the basis of one Subco 3 Non-Voting Share for each Suncor Share so sold, assigned and transferred to Subco 4 and Subco 4 shall issue an equal number of Subco 4 Shares to Subco 3 in consideration for Subco 3 issuing the Subco 3 Non-Voting Shares to the Suncor Electing Shareholders;
(f) the Amalgamating Corporations shall be amalgamated and continued as one corporation under the CBCA in accordance with the following:
(i) Name. The name of Amalco shall be Suncor Energy Inc.;
(ii) Registered Office. The registered office of Amalco shall be located at P.O. Box 38, 112 - 4th Avenue S.W., Calgary, Alberta, T2P 2V5;
(iii) Business and Powers. There shall be no restrictions on the business Amalco may carry on or on the powers it may exercise;
(iv) Share Provisions. Amalco is authorized to issue: (A) an unlimited number of preferred shares issuable in series designated as Senior Preferred Shares; (B) an unlimited number of preferred shares issuable in series designated as Junior Preferred Shares; and (C) an unlimited number of Amalco Shares. The rights, privileges, restrictions and conditions attaching to shares of Amalco shall be as set forth in Schedule A hereto;
(v) Restrictions on Transfer. The restrictions on the transfer of shares of Amalco shall be as set forth in Schedule B hereto;
(vi) Other Restrictions. The additional restrictions on Amalco shall be as set forth in Schedule C hereto;
(vii) Amendment of Restrictions on Repeal of Legislation.
(A) On the date section 9(1)(a) of the Petro-Canada Public Participation Act, as amended from time to time, and any other provisions contained in such Act relating to limitations on individual ownership of voting shares of Amalco is repealed and not replaced with other constraints on the issue, transfer or ownership of voting shares by individual Persons, Schedule B hereto and all references thereto shall be deleted in their entirety. For greater certainty, this provision shall not apply in the event section 9(1)(a) of the Petro-Canada Public Participation Act, as amended from time to time, is amended but not repealed or if such provision is repealed but is replaced with other provisions constraining the issue, transfer, ownership or voting of voting shares;
(B) On the date the Petro-Canada Public Participation Act, as amended from time to time, is repealed in its entirety and not replaced with other constraints on Amalco, Schedules B and C hereto and all references thereto shall be deleted in their entirety; and
(C) Amalco shall, within 30 days of the amendments or repeal provided in this section becoming effective, send each holder of Amalco Shares notice thereof;
(viii) Directors and Officers.
(A) Minimum and Maximum. The directors of Amalco shall, until otherwise changed in accordance with the CBCA, consist of a minimum number of eight and a maximum number of fifteen directors;
(B) Initial Directors. The number of directors on the board of directors shall initially be set at twelve. The initial directors of Amalco immediately following the amalgamation shall be the individuals whose names appear below:
Name |
|
Residency |
|
|
|
John T. Ferguson |
|
Canadian |
Richard L. George |
|
Canadian |
Mel E. Benson |
|
Canadian |
Brian A. Canfield |
|
American |
W. Douglas Ford |
|
American |
Paul Haseldonckx |
|
German |
John R. Huff |
|
American |
Brian F. MacNeill |
|
Canadian |
Maureen McCaw |
|
Canadian |
Michael W. OBrien |
|
Canadian |
James W. Simpson |
|
American |
Eira M. Thomas |
|
Canadian |
The initial directors shall hold office until the next annual meeting of the shareholders of Amalco or until their successors are elected or appointed. The actual number of directors within the minimum and maximum number set out in subsection 2.2(f)(viii)(A) may be determined from time to time by resolution of the directors. Any vacancy on the board of directors resulting from an increase in the number of directors as so determined may be filled by resolution of the directors;
(C) Initial Officers. The initial officers of Amalco shall be as follows:
Name |
|
Title |
|
|
|
Neil J. Camarta |
|
Executive Vice President, Natural Gas |
Bart Demosky |
|
Chief Financial Officer |
Terrence J. Hopwood |
|
Senior Vice President and General Counsel |
Boris J. Jackman |
|
Executive Vice President, Refining and Marketing |
Peter S. Kallos |
|
Executive Vice President, International and Offshore |
Sue Lee |
|
Senior Vice President, Human Resources and Public Affairs |
Mark Little |
|
Senior Vice President, Strategy and Integration |
Mike MacSween |
|
Senior Vice President, In-Situ |
Kevin Nabholz |
|
Executive Vice President, Major Projects |
E.F.H. Roberts |
|
Senior Vice President, Integration |
Andrew Stephens |
|
Senior Vice President, Business Services |
Jay Thornton |
|
Executive Vice President, Supply, Energy Trading and Renewables |
Steven W. Williams |
|
Chief Operating Officer |
(ix) Stated Capital. For the purposes of the CBCA, the aggregate stated capital attributable to the Amalco Shares issued pursuant to the Arrangement shall be the aggregate of the paid-up capital for the purposes of the Tax Act of the Suncor Shares, the Petro-Canada Shares, the Subco 1 Non-Voting Shares and the Subco 3 Non-Voting Shares immediately before the amalgamation, less the amount of any paid-up capital for the purposes of the Tax Act of the Suncor Shares or the Petro-Canada Shares that are cancelled on the amalgamation pursuant to subsections 2.2(f)(xv)(A), (xv)(B), or (xv)(G);
(x) By-laws. The by-laws of Amalco shall be the same as those of Suncor, mutatis mutandis;
(xi) Effect of Amalgamation. The provisions of subsections 186(b), (c), (d), (e) and (f) of the CBCA shall apply to the amalgamation with the result that:
(A) the property of each amalgamating corporation (other than shares of an Amalgamating Corporation held by another Amalgamating Corporation and an amount receivable by an Amalgamating Corporation from another Amalgamating Corporation) shall continue to be the property of Amalco;
(B) Amalco shall continue to be liable for the obligations of each amalgamating corporation (other than an amount owing by an Amalgamating Corporation to another Amalgamating Corporation);
(C) any existing cause of action, claim or liability to prosecution of an Amalgamating Corporation shall be unaffected;
(D) any civil, criminal or administrative action or proceeding pending by or against an Amalgamating Corporation may be continued to be prosecuted by or against Amalco; and
(E) a conviction against, or ruling, order or judgment in favour of or against, an Amalgamating Corporation may be enforced by or against Amalco;
(xii) Articles. The Articles of Arrangement filed to give effect to the Arrangement shall be deemed to be the articles of amalgamation of Amalco and the Certificate issued in respect of such Articles of Arrangement by the Director under the CBCA shall be deemed to be the certificate of amalgamation of Amalco;
(xiii) Inconsistency with Laws. To the extent any of the provisions of this Plan of Arrangement is deemed to be inconsistent with applicable Laws, this Plan of Arrangement shall be automatically adjusted to remove such inconsistency;
(xiv) Auditors. The initial auditors of Amalco will be PricewaterhouseCoopers LLP, who shall continue in office until the close of business of the first annual meeting of the holders of Amalco Shares, and the directors of Amalco are authorized to fix the remuneration of such auditors; and
(xv) Exchange and Cancellation of Shares. On the amalgamation:
(A) each Suncor Share held by a Dissenting Suncor Shareholder who has validly exercised such shareholders rights of dissent pursuant to Section 3.1 and which rights of dissent remain valid immediately prior to the Effective Time shall be cancelled and become an entitlement to be paid the fair value of such Suncor Share and the Dissenting Suncor Shareholder shall cease to have any rights as a Suncor Shareholder other than the right to be paid the fair value of such Suncor Share by Amalco in accordance with Section 3.1;
(B) each Petro-Canada Share held by a Dissenting Petro-Canada Shareholder who has validly exercised such shareholders rights of dissent pursuant to Section 3.2 and which rights of dissent remain valid immediately prior to the Effective Time shall be cancelled and become an entitlement to be paid the fair value of such Petro-Canada Share and the Dissenting Petro-Canada Shareholder shall cease to have any rights as a Petro-Canada Shareholder other than the right to be paid the fair value of such Petro-Canada Share by Amalco in accordance with Section 3.2;
(C) each Suncor Share (other than Suncor Shares held by an Amalgamating Corporation or Dissenting Suncor Shareholders) will be converted, without any act or formality on the part of the holder thereof, into that number of fully paid and non-assessable Amalco Shares equal to the Suncor Exchange Ratio, and the name of each such Suncor Shareholder will be removed from the register of holders of Suncor Shares and added to the register of holders of Amalco Shares;
(D) each Petro-Canada Share (other than Petro-Canada Shares held by an Amalgamating Corporation or Dissenting Petro-Canada Shareholders) will be converted, without any act or formality on the part of the holder thereof, into that number of fully paid and non-assessable Amalco Shares equal to the Petro-Canada Exchange Ratio, and the name of each such Petro-Canada Shareholder will be removed from the register of holders of Petro-Canada Shares and added to the register of holders of Amalco Shares;
(E) each Subco 1 Non-Voting Share will be converted, without any act or formality on the part of the holder thereof, into that number of fully paid and non-assessable Amalco Shares equal to the Petro-Canada Exchange Ratio, and the name of each such holder of Subco 1 Non-Voting Shares will be removed from the register of holders of Subco 1 Non-Voting Shares and added to the register of holders of Amalco Shares;
(F) each Subco 3 Non-Voting Share will be converted, without any act or formality on the part of the holder thereof, into that number of fully paid and non-assessable Amalco Shares equal to the Suncor Exchange Ratio, and the name of each such holder of Subco 3 Non-Voting Shares will be removed from the register of holders of Subco 3 Non-Voting Shares and added to the register of holders of Amalco Shares;
(G) each share of an Amalgamating Corporation held by another Amalgamating Corporation will be cancelled without any payment of capital in respect thereof; and
(H) in connection with the issuance and registration of Amalco Shares pursuant to subsections 2.2(f)(xv)(C), (D), (E), and (F), if the board of directors of Petro-Canada or the board of directors of Suncor determine that any person, together with any associates of that person, would hold, beneficially own or control, directly or indirectly, otherwise than by way of security only, in the aggregate more than 20% of the outstanding Amalco Shares immediately after the Effective Time:
(I) Amalco shall not register or otherwise recognize the issuance of any Amalco Shares to such person or any associate of that person that are in excess of 20% of the outstanding Amalco Shares immediately after the Effective Time (the Excess Shares);
(II) the Excess Shares shall be registered in the name of one or more trustees to be designated by Petro-Canada (and agreed to by Suncor, acting reasonably) prior to the Effective Time and Amalco after the Effective Time and Amalco shall be entitled to sell or redeem the Excess Shares in accordance with Sections 5, 6 and 7of Schedule B to this Plan of Arrangement and Amalco shall be entitled to rely on the provisions set forth in Schedule B to this Plan of Arrangement in connection with the sale or redemption of the Excess Shares which shall apply mutatis mutandis in these circumstances; and
(III) as long as the Excess Shares are held, beneficially owned or controlled by a person or associates of that person that hold, beneficially own or control, directly or indirectly, otherwise than by way of security only, in the aggregate more than 20% of the outstanding Amalco Shares, no person may, in person or by proxy, exercise the right to vote any of the Excess Shares and none of the Excess Shares shall be entitled to any dividend or other distribution and any entitlement to such dividend or other distribution shall be forfeited.
For purposes of this subsection 2.2(f)(xv)(H), the term person shall have the meaning set forth in the Petro-Canada Public Participation Act.
2.3 Petro-Canada Electing Shareholders
With respect to the election that may be made by an Eligible Petro-Canada Shareholder pursuant to subsection 2.2(b):
(a) subject to subsection 2.3(b), each Eligible Petro-Canada Shareholder shall be entitled to make such election by depositing with the Depositary, prior to the Petro-Canada Election Deadline, a validly completed and duly signed Letter of Transmittal and Election Form indicating such holders election, together with certificates representing such holders Petro-Canada Shares;
(b) the maximum number of Petro-Canada Shares that may be elected by all Eligible Petro-Canada Shareholders to be transferred to Subco 2 shall not exceed 15% of the number of issued and outstanding Petro-Canada Shares as of the Petro-Canada Election Deadline (the Petro-Canada Transfer Limit). In the event the aggregate number of Petro-Canada Shares in respect of which Petro-Canada Electing Shareholders have validly and duly deposited elections with the Depositary pursuant to subsection 2.3(a) to transfer to Subco 2 (the Aggregate Petro-Canada Shareholder Elected Amount) exceeds the Petro-Canada Transfer Limit, then the number of Petro-Canada Shares which a particular Petro-Canada Electing Shareholder has otherwise elected to be transferred to Subco 2 in the Filed Letter of Transmittal of such Petro-Canada Electing Shareholder (the Original Petro-Canada Shareholder Elected Amount) shall be reduced to such number of whole Petro-Canada Shares (with all fractions being rounded down to the nearest whole number of Petro-Canada Shares) (the Reduced Petro-Canada Shareholder Elected Amount) as is equal to the following formula:
Petro-Canada Transfer Limit |
x Original Petro-Canada Shareholder |
|
Aggregate Petro-Canada Shareholder Elected Amount |
Elected Amount |
|
and each such Petro-Canada Electing Shareholder shall (i) be deemed to have elected to transfer to Subco 2 such number of Petro-Canada Shares as is equal to the Reduced Petro-Canada Shareholder Elected Amount of such Petro-Canada Electing Shareholder and (ii) be deemed to have not elected to transfer to Subco 2 the balance of the Petro-Canada Shares in respect of which the Petro-Canada Electing Shareholder otherwise elected in the Filed Letter of Transmittal and such Petro-Canada Shares shall be converted to Amalco Shares upon the Arrangement in accordance with subsection 2.2(f)(xv)(D) and all such elections made in the Filed Letters of Transmittal shall be amended accordingly; and
(c) any Petro-Canada Shares held by an Eligible Petro-Canada Shareholder who: (i) does not deposit with the Depositary a validly completed and duly signed Letter of Transmittal and Election Form prior to the Petro-Canada Election Deadline, (ii) otherwise fails to comply with the requirements of subsection 2.3(a) and the Letter of Transmittal and Election Form or (iii) fails to elect to exchange the Petro-Canada Shares held by such Petro-Canada Eligible Shareholder as contemplated by subsections 2.2(b) and 2.2(c), shall be converted to Amalco Shares upon the Arrangement in accordance with subsection 2.2(f)(xv)(D).
2.4 Suncor Electing Shareholders
With respect to the election that may be made by an Eligible Suncor Shareholder pursuant to subsection 2.2(d):
(a) subject to subsection 2.4(b), each Eligible Suncor Shareholder shall be entitled to make such election by depositing with the Depositary, prior to the Suncor Election Deadline, a validly completed and duly signed Letter of Transmittal and Election Form indicating such holders election, together with certificates representing such holders Suncor Shares;
(b) the maximum number of Suncor Shares that may be elected by all Eligible Suncor Shareholders to be transferred to Subco 4 shall not exceed 15% of the number of issued and outstanding Suncor Shares as of the Suncor Election Deadline (the Suncor Transfer Limit). In the event the aggregate number of Suncor Shares in respect of which Suncor Electing Shareholders have validly and duly deposited elections with the Depositary pursuant to subsection 2.4(a) to transfer to Subco 4 (the Aggregate Suncor Shareholder Elected Amount) exceeds the Suncor Transfer Limit, then the number of Suncor Shares which a particular Suncor Electing Shareholder has otherwise elected to be transferred to Subco 4 in the Filed Letter of Transmittal of such Suncor Electing Shareholder (the Original Suncor Shareholder Elected Amount) shall be reduced to such number of whole Suncor Shares (with all fractions being rounded down to the nearest whole number of Suncor Shares) (the Reduced Suncor Shareholder Elected Amount) as is equal to the following formula:
Suncor Transfer Limit |
|
x Original Suncor Shareholder |
Aggregate Suncor Shareholder Elected Amount |
|
Elected Amount |
And each such Suncor Electing Shareholder shall (i) be deemed to have elected to transfer to Subco 4 such number of Suncor Shares as is equal to the Reduced Suncor Shareholder Elected Amount of such Suncor Electing Shareholder and (ii) be deemed to have not elected to transfer to Subco 4 the balance of the Suncor Shares in respect of which the Suncor Electing Shareholder otherwise elected in the Filed Letter of Transmittal and such Suncor Shares shall be converted to Amalco Shares upon the Arrangement in accordance with subsection 2.2(f)(xv)(C) and all such elections made in the Filed Letters of Transmittal shall be amended accordingly; and
(c) any Suncor Shares held by an Eligible Suncor Shareholder who: (i) does not deposit with the Depositary a validly completed and duly signed Letter of Transmittal and Election Form prior to the Suncor Election Deadline, (ii) otherwise fails to comply with the requirements of subsection 2.4(a) and the Letter of Transmittal and Election Form, or (iii) fails to elect to exchange the Suncor Shares held by such Suncor Eligible Shareholder as contemplated by subsections 2.2(d) and 2.2(e), shall be converted to Amalco Shares upon the Arrangement in accordance with subsection 2.2(f)(xv)(C).
2.5 Transfer of Petro-Canada Shares to Subco 2
With respect to each Petro-Canada Electing Shareholder, upon the transfer of Petro-Canada Shares to Subco 2 pursuant to Section 2.2(b) and the issuance of Subco 1 Non-Voting Shares to the Petro-Canada Electing Shareholder pursuant to Section 2.2(c):
(a) such Petro-Canada Electing Shareholder shall cease to be the holder of the Petro-Canada Shares so transferred to Subco 2 and the name of such Petro-Canada Electing Shareholder shall be removed from the register of holders of Petro-Canada Shares in respect of the Petro-Canada Shares transferred to Subco 2;Subco 2 shall become the holder of such Petro-Canada Shares and shall be added to the register of holders of Petro-Canada Shares; and
(b) the name of such Petro-Canada Electing Shareholder shall be added to the register of holders of Subco 1 Non-Voting Shares.
2.6 Transfer of Suncor Shares to Subco 4
With respect to each Suncor Electing Shareholder, upon the transfer of Suncor Shares to Subco 4 pursuant to Section 2.2(d) and the issuance of Subco 3 Non-Voting Shares to the Suncor Electing Shareholder pursuant to Section 2.2(e):
(a) such Suncor Electing Shareholder shall cease to be the holder of the Suncor Shares so transferred to Subco 4 and the name of such Suncor Electing Shareholder shall be removed from the register of holders of Suncor Shares in respect of the Suncor Shares transferred to Subco 4;
(b) Subco 4 shall become the holder of such Suncor Shares and shall be added to the register of holders of Suncor Shares; and
(c) the name of such Suncor Electing Shareholder shall be added to the register of holders of Subco 3 Non-Voting Shares.
2.7 Notice of Pro-Ration
In the event the Petro-Canada Transfer Limit or the Suncor Transfer Limit is exceeded, Amalco shall issue a press release following the Effective Time as to the proportion of Suncor Shares or Petro-Canada Shares, as applicable, in respect of which elections by Suncor Electing Shareholders or Petro-Canada Electing Shareholders were reduced.
2.8 Stated Capital
Upon issuance in accordance with the Arrangement:
(a) the aggregate stated capital of the Subco 1 Non-Voting Shares issued to Electing Petro-Canada Shareholders pursuant to subsection 2.2(c) shall be set at an amount equal to the aggregate paid-up capital for the purposes of the Tax Act of the Petro-Canada Shares transferred to Subco 2 pursuant to subsection 2.2(b); and
(b) the aggregate stated capital of the Subco 3 Non-Voting Shares issued to Electing Suncor Shareholders pursuant to subsection 2.2(e) shall be set at an amount equal to the aggregate paid-up capital for the purposes of the Tax Act of the Suncor Shares transferred to Subco 4 pursuant to subsection 2.2(d).
2.9 Evidence of Ownership of Shares
The issuance of the Subco 1 Non-Voting Shares to the Electing Petro-Canada Shareholders pursuant to subsection 2.2(c) and the issuance of the Subco 3 Non-Voting Shares to the Electing Suncor Shareholders pursuant to subsection 2.2(e) shall be evidenced through additions to the share registries maintained on behalf of Subco 1 in respect of the Subco 1 Non-Voting Shares and Subco 3 in respect of the Subco 3 Non-Voting Shares and no certificates will be issued for such securities as part of the Plan of Arrangement.
ARTICLE III
RIGHTS OF DISSENT
3.1 Rights of Dissent for Suncor Shareholders
Suncor Shareholders may exercise rights of dissent with respect to the Suncor Shares held by such Suncor Shareholder pursuant to and in the manner set forth in section 190 of the CBCA and this Section 3.1 in connection with the Arrangement; provided that, notwithstanding subsection 190(5) of the CBCA, the written objection to the Arrangement Resolution referred to in subsection 190(5) of the CBCA must be received by Suncor not later than 5:00 p.m. (Calgary time) on the second business day immediately preceding the Suncor Shareholders Meeting. Suncor Shareholders who duly exercise such rights of dissent and who:
(a) are ultimately entitled to be paid fair value for their Suncor Shares shall be deemed not to have exchanged their Suncor Shares for Amalco Shares pursuant to the Arrangement, to the extent the fair value therefor is paid by Amalco, and such Suncor Shares shall be cancelled in accordance with the Arrangement and will not be exchanged for Amalco Shares in accordance with the Arrangement; or
(b) are ultimately not entitled, for any reason, to be paid fair value for their Suncor Shares shall be deemed to have participated in the Arrangement on the same basis as a non-dissenting holder of Suncor Shares who is not a Suncor Electing Shareholder and shall receive Amalco Shares in exchange for their Suncor Shares on the basis determined in accordance with subsection 2.2(f)(xv)(C),
but in no case shall Amalco or any other Person be required to recognize such holders as Suncor Shareholders after the Effective Time, and the names of such Suncor Shareholders shall be deleted from the registers of Suncor Shareholders at the Effective Time.
3.2 Rights of Dissent for Petro-Canada Shareholders
Petro-Canada Shareholders may exercise rights of dissent with respect to the Petro-Canada Shares held by such Petro-Canada Shareholder pursuant to and in the manner set forth in section 190 of the CBCA and this Section 3.2 in connection with the Arrangement; provided that, notwithstanding subsection 190(5) of the CBCA, the written objection to the Arrangement Resolution referred to in subsection 190(5) of the CBCA must be received by Petro-Canada not later than 5:00 p.m. (Calgary time) on the second business day immediately preceding the Petro-Canada Shareholders Meeting. Petro-Canada Shareholders who duly exercise such rights of dissent and who:
(a) are ultimately entitled to be paid fair value for their Petro-Canada Shares shall be deemed not to have exchanged their Petro-Canada Shares for Amalco Shares pursuant to the Arrangement, to the extent the fair value therefor is paid by Amalco, and such Petro-Canada Shares shall be cancelled in accordance with the Arrangement and will not be exchanged for Amalco Shares in accordance with the Arrangement; or
(b) are ultimately not entitled, for any reason, to be paid fair value for their Petro-Canada Shares shall be deemed to have participated in the Arrangement on the same basis as a non-dissenting holder of Petro-Canada Shares who is not a Petro-Canada Electing Shareholder and shall receive Amalco Shares in exchange for their Petro-Canada Shares on the basis determined in accordance with subsection 2.2(f)(xv)(D),
but in no case shall Amalco or any other Person be required to recognize such holders as Petro-Canada Shareholders after the Effective Time, and the names of such Petro-Canada Shareholders shall be deleted from the registers of Petro-Canada Shareholders at the Effective Time.
ARTICLE IV
CERTIFICATES AND FRACTIONAL SHARES
4.1 Issuance of Certificates Representing Amalco Shares
Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented one or more Suncor Shares or Petro-Canada Shares that were (i) exchanged for Subco 3 Non-Voting Shares or Subco 1 Non-Voting Shares; and/or (ii) converted into one or more Amalco Shares under the Arrangement, together with such other documents and instruments as would have been required to effect the transfer of the shares formerly represented by such certificate under the CBCA and the by-laws of Suncor or Petro-Canada, as applicable, and such additional documents and instruments as the Depositary may reasonably require, the holder of such surrendered certificate shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, a certificate representing that number (rounded in accordance with Section 4.3) of Amalco Shares which such holder has the right to receive (together with any dividends or distributions with respect thereto pursuant to Section 4.2), and the certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Suncor Shares or Petro-Canada Shares that is not registered in the transfer records of Suncor or Petro-Canada, as applicable, a certificate representing the proper number of Amalco Shares may be issued to the transferee if the certificate representing such Suncor Shares or Petro-Canada Shares, as applicable, is presented to the Depositary, accompanied by all documents required to evidence and effect such transfer. Until surrendered as contemplated by this Section 4.1, each certificate which immediately prior to the Effective Time represented Suncor Shares or Petro-Canada Shares that were exchanged for Subco 3 Non-Voting Shares or Subco 1 Non-Voting Shares; and/or converted into Amalco Shares shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender (i) the certificate representing Amalco Shares as contemplated by this Section 4.1, and (ii) any dividends or distributions with a record date after the Effective Time theretofore paid or payable with respect to Amalco Shares as contemplated by Section 4.2.
4.2 Distributions with Respect to Unsurrendered Certificates
No dividends or other distributions declared or made after the Effective Time with respect to Amalco Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate which immediately prior to the Effective Time represented outstanding Suncor Shares or Petro-Canada Shares that were exchanged pursuant to the Arrangement unless and until the holder of record of such certificate shall surrender such certificate in accordance with Section 4.1. Subject to applicable Law, at the time of such surrender of any such certificate, there shall be paid to the holder of record of the certificates representing whole Suncor Shares or Petro-Canada Shares, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole Amalco Share, and (ii) on the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole Amalco Share, as the case may be.
4.3 No Fractional Shares
No certificates or scrip representing fractional Amalco Shares shall be issued upon the surrender for exchange of certificates pursuant to Section 4.1 and no dividend, stock split or other change in the capital structure of Amalco shall relate to any such fractional security and such fractional interests shall not entitle the owner thereof to exercise any rights as a security holder of Amalco. In lieu of any fractional Amalco Shares, a shareholder otherwise entitled to a fractional interest in an Amalco Share, shall receive the nearest whole number of Amalco Shares as applicable (with fractions equal to exactly 0.5 being rounded up).
4.4 Lost Certificates
In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Suncor Shares or Petro-Canada Shares that were exchanged pursuant to the Arrangement shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will issue in exchange for such lost, stolen or destroyed certificate, one or more certificates representing one or more Amalco Shares (and any dividends or distributions with respect thereto pursuant to Section 4.2) deliverable in accordance with such holders Letter of Transmittal and Election Form. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom certificates representing Amalco Shares are to be issued shall, as a condition precedent to the issuance thereof, give a bond satisfactory to Amalco and its transfer agents in such sum as Amalco may direct or otherwise indemnify Amalco in a manner satisfactory to Amalco against any claim that may be made against Amalco with respect to the certificate alleged to have been lost, stolen or destroyed.
4.5 Extinction of Rights
Subject to any applicable legislation relating to unclaimed personal property, any certificate which immediately prior to the Effective Time represented outstanding Suncor Shares or Petro-Canada Shares that are exchanged pursuant to the Arrangement and not deposited with all other instruments required by Section 4.1 on or prior to the sixth anniversary of the Effective Date, shall cease to represent a claim or interest of any kind or nature as a shareholder of Amalco. On such date, the Amalco Shares to which the former registered holder of the certificate referred to in the preceding sentence was ultimately entitled shall be deemed to have been surrendered to Amalco, together with all entitlements to dividends, distributions and interest thereon held for such former registered holder.
4.6 Withholding Rights
Amalco and the Depositary shall be entitled to deduct and withhold from any dividend or consideration otherwise payable to any holder of Suncor Shares or Petro-Canada Shares, such amounts as Amalco or the Depositary are required or permitted to deduct and withhold with respect to such payment under the Tax Act, the U.S. Tax Code or any provision of provincial, state, local or foreign Tax Law, in each case as amended. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the holder of the shares in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent that the amount so required or permitted to be deducted or withheld from any payment to a holder exceeds the cash component, if any, of the consideration otherwise payable to the holder, Amalco and the Depositary are hereby authorized to sell or otherwise dispose of such portion of the Amalco Shares otherwise issuable to the holder as is necessary to provide sufficient funds to Amalco or the Depositary, as the case may be, to enable it to comply with such deduction or withholding requirement and Amalco or the Depositary shall notify the holder thereof and remit the applicable portion of the net proceeds of such sale to the appropriate taxing authority.
ARTICLE V
AMENDMENTS
5.1 Amendments to Plan of Arrangement
(a) Suncor and Petro-Canada may amend, modify and/or supplement this Plan of Arrangement at any time and from time to time prior to the Effective Time, provided that each such amendment, modification and/or supplement must (i) be set out in writing, (ii) be approved by Suncor and Petro-Canada, (iii) filed with the Court and, if made following the Suncor Shareholders Meeting or Petro-Canada Shareholders Meeting, approved by the Court and (iv) communicated to Petro-Canada Shareholders and Suncor Shareholders, as applicable, if and as required by the Court.
(b) Any amendment, modification or supplement to this Plan of Arrangement may be proposed by Suncor or Petro-Canada at any time prior to the Suncor Shareholders Meeting or Petro-Canada Shareholders Meeting (provided that the other Party shall have consented thereto in writing) with or without any other prior notice or communication, and if so proposed and accepted by the Persons voting at the Suncor Shareholders Meeting or Petro-Canada Shareholders Meeting (other than as may be required under the Interim Order), shall become part of this Plan of Arrangement for all purposes.
(c) Any amendment, modification or supplement to this Plan of Arrangement that is approved or directed by the Court following the Suncor Shareholders Meeting or Petro-Canada Shareholders Meeting shall be effective only if (i) it is consented to in writing by each of Suncor and Petro-Canada (in each case, acting reasonably), and (ii) if required by the Court, it is consented to by Suncor Shareholders or Petro-Canada Shareholders, as applicable, voting in the manner directed by the Court.
(d) Any amendment, modification or supplement to this Plan of Arrangement may be made following the Effective Date unilaterally by Amalco, provided that it concerns a matter which, in the reasonable opinion of Amalco, is of an administrative nature required to better give effect to the implementation of this Plan of Arrangement and is not adverse to the economic interest of any former Suncor Shareholders or Petro-Canada Shareholders.
ARTICLE VI
FURTHER ASSURANCES
6.1 Notwithstanding
Notwithstanding that the transactions and events set out herein shall occur and shall be deemed to occur in the order set out in this Plan of Arrangement without any further act or formality, each of the Parties to the Arrangement Agreement shall make, do and execute, or cause to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by either of them in order further to document or evidence any of the transactions or events set out herein.
SCHEDULE A TO PLAN OF ARRANGEMENT
SHARE TERMS
1. AMALCO SHARES
The rights, privileges, restrictions and conditions attaching to the common shares of Amalco (the Amalco Shares) are as follows:
1.1 Voting
Holders of Amalco Shares shall be entitled to receive notice of and to attend any meeting of the shareholders of Amalco and shall be entitled to one vote in respect of each Amalco Share held at such meeting, except a meeting of holders of a particular class or series of shares other than Amalco Shares who are entitled to vote separately as a class or series at such meeting.
1.2 Dividends
Subject to the rights, privileges, restrictions and conditions attaching to any other class of shares of Amalco ranking in priority to or ratably with the Amalco Shares, holders of Amalco Shares shall be entitled to receive dividends if, as and when declared by the directors of Amalco out of the assets of Amalco properly applicable to the payment of dividends in such amounts and payable in such manner as the directors of Amalco may from time to time determine.
1.3 Liquidation
In the event of the liquidation, dissolution or winding up of Amalco or any other distribution of the property or assets of Amalco among its shareholders for the purpose of winding up its affairs, holders of Amalco Shares shall, subject to the rights of the holders of any other class of shares of Amalco entitled to receive the property or assets of Amalco upon such a liquidation, dissolution, winding up or other distribution in priority to or ratably with holders of Amalco Shares, be entitled to receive the remaining property and assets of Amalco.
2. SENIOR PREFERRED SHARES
The Senior Preferred Shares, as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:
2.1 Directors Right to Issue in One or More Series
The Senior Preferred Shares may be issued at any time or from time to time in one or more series. Before any shares of a series are issued, the board of directors of Amalco shall fix the number of shares that will form such series and shall, subject to the limitations set out in the Articles, determine the designation, rights, privileges, restrictions and conditions to be attached to the Senior Preferred Shares of such series, the whole subject to the filing with the Director (as defined in the Canada Business Corporations Act (the Act)) of Articles of Amendment containing a description of such series including the rights, privileges, restrictions and conditions determined by the board of directors of Amalco.
2.2 Ranking of the Senior Preferred Shares
The Senior Preferred Shares of each series shall rank on a parity with the Senior Preferred Shares of every other series with respect to dividends and return of capital and shall be entitled to a preference over the Junior Preferred Shares and the Amalco Shares of Amalco and over any other shares ranking junior to the Senior Preferred Shares with respect to priority in payment of dividends and in the distribution of assets in the event of the liquidation, dissolution or winding-up of Amalco, whether voluntary or involuntary, or any other distribution of the assets of Amalco among its shareholders for the purpose of winding up its affairs. If any cumulative dividends, whether or not declared, or declared non-cumulative dividends or amounts payable on return of capital are not paid in full in respect of any series of the Senior Preferred Shares, the Senior Preferred Shares of all series shall participate rateably in respect of such dividends in accordance with the sums that would be payable on such shares if all such dividends were declared and paid in full, and in respect of such return of capital in accordance with the sums that would be payable on such return of capital if all sums so payable were paid in full; provided, however, that if there are insufficient assets to satisfy in full all such claims as aforesaid, the claims of the holders of the Senior Preferred Shares with respect to return of capital shall be paid and satisfied first and any assets remaining thereafter shall be applied towards the payment and satisfaction of claims in respect of dividends. The Senior Preferred Shares of any series may also be given such other preferences not inconsistent with the rights, privileges, restrictions and conditions attached to the Senior Preferred Shares as a class over the Junior Preferred Shares and the Amalco Shares of Amalco and over any other shares ranking junior to the Senior Preferred Shares as may be determined in the case of such series of Senior Preferred Shares.
2.3 Voting Rights
Except as hereinafter referred to or as required by law or unless provision is made in the Articles relating to any series of Senior Preferred Shares that such series is entitled to vote, the holders of the Senior Preferred Shares as a class shall not be entitled as such to receive notice of, to attend or to vote at any meeting of the shareholders of Amalco.
2.4 Amendment with Approval of Holders of Senior Preferred Shares
The rights, privileges, restrictions and conditions attached to the Senior Preferred Shares as a class may be added to, changed or removed but only with the approval of the holders of the Senior Preferred Shares given as hereinafter specified.
2.5 Approval of Holders of the Senior Preferred Shares
The approval of the holders of the Senior Preferred Shares to add to, change or remove any right, privilege, restriction or condition attaching to the Senior Preferred Shares as a class or in respect of any other matter requiring the consent of the holders of the Senior Preferred Shares may be given in such manner as may then be required by law, subject to a minimum requirement that such approval be given by resolution signed by all the holders of the Senior Preferred Shares or passed by the affirmative vote of at least 2 / 3 of the votes cast at a meeting of the holders of the Senior Preferred Shares duly called for that purpose.
The formalities to be observed with respect to the giving of notice of any such meeting or any adjourned meeting, the quorum required therefor and the conduct thereof shall be those from time to time prescribed by the by-laws of Amalco with respect to meetings of shareholders, or if not so prescribed, as required by the Act as in force at the time of the meeting. On every poll taken at every meeting of the holders of the Senior Preferred Shares as a class, or at any joint meeting of the holders of two or more series of Senior Preferred Shares, each holder of Senior Preferred Shares entitled to vote thereat shall have one vote in respect of each $1.00 of the issue price of each Senior Preferred Share held.
3. JUNIOR PREFERRED SHARES
The Junior Preferred Shares, as a class, shall have attached thereto the following rights, privileges, restrictions and conditions:
3.1 Directors Right to Issue in One or More Series
The Junior Preferred Shares may be issued at any time or from time to time in one or more series. Before any shares of a series are issued, the board of directors of Amalco shall fix the number of shares that will form such series and shall, subject to the limitations set out in the Articles, determine the designation, rights, privileges, restrictions and conditions to be attached to the Junior Preferred Shares of such series, the whole subject to the filing with the Director (as defined in the Act) of Articles of Amendment containing a description of such series including the rights, privileges, restrictions and conditions determined by the board of directors of Amalco.
3.2 Ranking of the Junior Preferred Shares
The Junior Preferred Shares of each series shall rank on a parity with the Junior Preferred Shares of every other series with respect to dividends and return of capital and shall, subject to the prior rights of the holders of the Senior Preferred Shares, be entitled to a preference over the Amalco Shares of Amalco and over any other shares ranking junior to the Junior Preferred Shares with respect to priority in payment of dividends and in the distribution of assets in the event of the liquidation, dissolution or winding-up of Amalco, whether voluntary or involuntary, or any other distribution of the assets of Amalco among its shareholders for the purpose of winding up its affairs. If any cumulative dividends, whether or not declared, or declared non-cumulative dividends or amounts payable on return of capital are not paid in full in respect of any series of the Junior Preferred Shares, the Junior Preferred Shares of all series shall participate rateably in respect of such dividends in accordance with the sums that would be payable on such shares if all such dividends were declared and paid in full, and in respect of such return of capital in accordance with the sums that would be payable on such return of capital if all sums so payable were paid in full; provided, however, that if there are insufficient assets to satisfy in full all such claims as aforesaid, the claims of the holders of the Junior Preferred Shares with respect to return of capital shall be paid and satisfied first and any assets remaining thereafter shall be applied towards the payment and satisfaction of claims in respect of dividends. The Junior Preferred Shares of any series may also be given such other preferences not inconsistent with the rights, privileges, restrictions and conditions attached to the Junior Preferred Shares as a class over the Amalco Shares of Amalco and over any other shares ranking junior to the Junior Preferred Shares as may be determined in the case of such series of Junior Preferred Shares.
3.3 Voting Rights
Except as hereinafter referred to or as required by law or unless provision is made in the Articles relating to any series of Junior Preferred Shares that such series is entitled to vote, the holders of the Junior Preferred Shares as a class shall not be entitled as such to receive notice of, to attend or to vote at any meeting of the shareholders of Amalco.
3.4 Amendment with Approval of Holders of Junior Preferred Shares
The rights, privileges, restrictions and conditions attached to the Junior Preferred Shares as a class may be added to, changed or removed but only with the approval of the holders of the Junior Preferred Shares given as hereinafter specified.
3.5 Approval of Holders of the Junior Preferred Shares
The approval of the holders of the Junior Preferred Shares to add to, change or remove any right, privilege, restriction or condition attaching to the Junior Preferred Shares as a class or in respect of any other matter requiring the consent of the holders of the Junior Preferred Shares may be given in such manner as may then be required by law, subject to a minimum requirement that such approval be given by resolution signed by all the holders of the Junior Preferred Shares or passed by the affirmative vote of at least 2 / 3 of the votes cast at a meeting of the holders of the Junior Preferred Shares duly called for that purpose.
The formalities to be observed with respect to the giving of notice of any such meeting or any adjourned meeting, the quorum required therefor and the conduct thereof shall be those from time to time prescribed by the by-laws of Amalco with respect to meetings of shareholders, or if not so prescribed, as required by the Act as in force at the time of the meeting. On every poll taken at every meeting of the holders of the Junior Preferred Shares as a class, or at any joint meeting of the holders of two or more series of Junior Preferred Shares, each holder of Junior Shares entitled to vote thereat shall have one vote in respect of each $1.00 of the issue price of each Junior Preferred Share held.
4. INTERPRETATION
In this Schedule A, all terms that are not defined have the meanings attributed to those terms in the Petro-Canada Public Participation Act.
SCHEDULE B TO PLAN OF ARRANGEMENT
OWNERSHIP AND VOTING RESTRICTIONS
1. Interpretation
1.1 In this Schedule B, all terms that are not defined have the meanings attributed to those terms in the Petro-Canada Public Participation Act and:
directors determination and similar expressions mean a determination made by the directors of Amalco in accordance with section 10;
excess voting shares means voting shares held, beneficially owned or controlled in contravention of the individual share constraint;
individual share constraint has the meaning set forth in subsection 2.1;
principal stock exchange means, at any time, the stock exchange in Canada on which the highest volume of voting shares is generally traded at that time, as determined by the directors of Amalco;
sell-down notice has the meaning set forth in subsection 3.1;
shareholder default has the meaning set forth in paragraph 3.1(d);
shareholders declaration means a declaration made in accordance with section 11; and
suspension has the meaning set forth in subsection 4.1 and suspend, suspended and similar expressions have corresponding meanings.
1.2 The provisions of subsections 9(3) to 9(8) of the Petro-Canada Public Participation Act, as amended from time to time, are deemed to be incorporated in this Schedule B. Any provision of this Schedule B that may be read in a manner that is inconsistent with the Petro-Canada Public Participation Act shall be read so as to be consistent therewith.
1.3 For greater certainty, no person is presumed to be an associate of any other person for purposes of paragraph 9(5)(g) of the Petro-Canada Public Participation Act solely by reason that one of them has given the other the power to vote or direct the voting of voting shares of a class of voting shares at a meeting of the holders of that class pursuant to a revocable proxy where the proxy is solicited solely by means of an information circular issued in a public solicitation of proxies that is made in respect of all voting shares of that class and in accordance with applicable law.
1.4 For the purposes of this Schedule B:
(a) where voting shares of Amalco are held, beneficially owned or controlled by two or more persons jointly, the number of voting shares held, beneficially owned or controlled by each such person shall include the number of voting shares held, beneficially owned or controlled jointly with such other persons; and
(b) references to shares of a person are to shares held, beneficially owned or controlled, directly or indirectly, otherwise than by way of security only, by that person.
1.5 In this Schedule B, except where the context requires to the contrary, words importing the singular shall include the plural and vice versa and words importing gender shall include masculine, feminine and neuter genders.
2. Individual Share Constraint
2.1 No person, together with the associates of that person, shall hold, beneficially own or control, directly or indirectly, otherwise than by way of security only, in the aggregate voting shares to which are attached more than twenty per cent (20%) of the votes that may ordinarily be cast to elect directors of Amalco, other than votes that may be so cast by or on behalf of the Minister. (The foregoing prohibition is referred to in this Schedule B as the individual share constraint.)
2.2 In the event that it appears from the central securities register of Amalco that any person, together with the associates of that person, is in contravention of the individual share constraint:
(a) Amalco shall not accept any subscription for voting shares from that person or any associate of that person;
(b) Amalco shall not issue any voting shares to that person or any associate of that person; and
(c) Amalco shall not register or otherwise recognize the transfer of any voting shares to that person or any associate of that person.
2.3 In the event of a directors determination that any person, together with the associates of that person, is in contravention of the individual share constraint:
(a) Amalco shall not accept any subscription for voting shares from that person or any associate of that person;
(b) Amalco shall not issue any voting shares to that person or any associate of that person;
(c) Amalco shall not register or otherwise recognize the transfer of any voting shares to that person or any associate of that person;
(d) no person may, in person or by proxy, exercise the right to vote any of the voting shares of that person or of any associate of that person;
(e) subject to subsection 9.1, Amalco shall not declare or pay any dividend, and or make any other distribution:
(i) on any of the excess voting shares of that person or of any associate of that person; or
(ii) if the directors of Amalco determine that the contravention of the individual share constraint was intentional and that it would not be inequitable to do so, on all of the voting shares of that person and of each associate of that person;
and any entitlement to such dividend or other distribution shall be forfeited; and
(f) Amalco shall send a sell-down notice to the registered holder of the voting shares of that person and of each associate of that person.
2.4 In the event that it appears from the central securities register of Amalco that, or in the event, of a directors determination that, any person, together with the associates of that person, after any proposed subscription, issue or transfer of voting shares, would be in contravention of the individual share constraint, Amalco shall not:
(a) accept the proposed subscription for voting shares from;
(b) issue the proposed voting shares to; or
(c) register or otherwise recognize the proposed transfer of any voting shares to;
that person or any associate of that person.
2.5 In the event of a directors determination that during any period any person, together with the associates of that person, was in contravention of the individual share constraint, the directors of Amalco may also determine that:
(a) any votes cast, in person or by proxy, during that period in respect of the voting shares of that person or of any associate of that person shall be disqualified and deemed not to have been cast; and
(b) subject to subsection 9.1, each of that person and the associates of that person is liable to Amalco to restore to Amalco the amount of any dividend paid or distribution received during that period on:
(i) the excess voting shares of that person and of each associate of that person; or
(ii) if the directors of Amalco determine that the contravention of the individual share constraint was intentional and that it would not be inequitable to do so, on all of the voting shares of that person and of each associate of that person.
3. Sell-Down Notice
3.1 Any notice (a sell-down notice) required to be sent to a registered holder of voting shares pursuant to paragraph 2.3(f):
(a) shall specify in reasonable detail the nature of the contravention of the individual share constraint, the number of voting shares determined to be excess voting shares and the consequences of the contravention specified in section 2;
(b) shall request an initial or further shareholders declaration;
(c) shall specify a date, which shall be not less than 45 days after the date of the sell-down notice, by which the excess voting shares are to be sold or disposed of; and
(d) shall state that unless the registered holder either:
(i) sells or otherwise disposes of the excess voting shares by the date specified in the sell-down notice on a basis that does not result in any contravention of the individual share constraint and provides to Amalco, in addition to the shareholders declaration requested pursuant to paragraph 3.1(b), written evidence satisfactory to Amalco of such sale or other disposition; or
(ii) provides to Amalco, in addition to the shareholders declaration requested pursuant to paragraph 3.1(b), written evidence satisfactory to Amalco that no such sale or other disposition of excess voting shares is required;
such default (a shareholder default) shall result in the consequence of suspension pursuant to section 4 and may result in the consequence of sale in accordance with section 5 or redemption in accordance with section 6, in each case without further notice to the registered holder, and shall specify in reasonable detail the nature and timing of those consequences
3.2 In the event that, following the sending of a sell-down notice, written evidence is submitted to Amalco for purposes of subparagraph 3.1(d)(ii), Amalco shall assess the evidence as soon as is reasonably practicable and in any event shall give a second notice to the person submitting the evidence not later than 10 days after the receipt thereof stating whether the evidence has or has not satisfied Amalco that no sale or other disposition of excess voting shares is required. If the evidence has so satisfied Amalco, such sell-down notice shall be cancelled and such second notice shall so state. If the evidence has not so satisfied Amalco, such second notice shall reiterate the statements required to be made in such sell-down notice pursuant to paragraphs 3.1(c) and (d). In either case, the 45 day period referred to in paragraph 3.1(c) shall be automatically extended to the end of the 10 day period referred to in this section 3.2 if such 10 day period extends beyond such 45 day period.
4. Suspension
4.1 In the event of a shareholder default in respect of any registered holder of voting shares, then, without further notice to the registered holder:
(a) all of the voting shares of the registered holder shall be deemed to be struck from the securities register of Amalco;
(b) no person may, in person or by proxy, exercise the right to vote any of such voting shares;
(c) subject to subsection 9.1, Amalco shall not declare or pay any dividend, or make any other distribution, on any of such voting shares and any entitlement to such dividend or other distribution shall be forfeited;
(d) Amalco shall not send any form of proxy, information circular or financial statements of Amalco or any other communication from Amalco to any person in respect of such voting shares; and
(e) no person may exercise any other right or privilege ordinarily attached to such voting shares.
(All of the foregoing consequences of a shareholder default are referred to in this Schedule B as a suspension.) Notwithstanding the foregoing, a registered holder of suspended voting shares shall have the right to transfer such voting shares on any securities register of Amalco on a basis that does not result in contravention of the individual share constraint.
4.2 The directors of Amalco shall cancel any suspension of voting shares of a registered holder and reinstate the registered holder to the securities register of Amalco for all purposes if they determine that, following the cancellation and reinstatement, none of such voting shares will be held, beneficially owned or controlled in contravention of the individual share constraint. For greater certainty, any such reinstatement shall permit, from and after the reinstatement, the exercise of all rights and privileges attached to the voting shares so reinstated but, subject to subsection 9.1, shall have no retroactive effect.
5. Sale
5.1 In the event of a shareholder default in respect of any registered holder of voting shares, Amalco may elect by directors determination to sell, on behalf of the registered holder, the excess voting shares thereof, without further notice thereto, on the terms set forth in this section 5 and section 7.
5.2 Amalco may sell any excess voting shares in accordance with this section 5:
(a) on the principal stock exchange; or
(b) if there is no principal stock exchange, on such other stock exchange or organized market on which the voting shares are then listed or traded as the directors of Amalco shall determine; or
(c) if the voting shares are not then listed on any stock exchange or traded on any organized market, in such other manner as the directors of Amalco shall determine.
5.3 The net proceeds of sale of excess voting shares sold in accordance with this section 5 shall be the net proceeds after deduction of any commission, tax or other cost of sale.
5.4 For all purposes of a sale of excess voting shares in accordance with this section, Amalco is the agent and lawful attorney of the registered holder and the beneficial owner of the excess voting shares.
6. Redemption
6.1 In the event of a shareholder default in respect of any registered holder of voting shares and in the event that the directors of Amalco determine either that Amalco has used reasonable efforts to sell excess voting shares in accordance with section 5 but that such sale is impracticable or that it is likely that such sale would have material adverse consequences to Amalco or the holders of voting shares, Amalco may elect by directors determination, subject to applicable law, to redeem the excess voting shares thereof, without further notice thereto, on the terms set forth in this section 6 and section 7.
6.2 The redemption price paid by Amalco to redeem any excess voting shares in accordance with this section 6 shall be:
(a) the average of the closing prices per share of the voting shares on the principal stock exchange (or, if there is no principal stock exchange or if the requisite trading of voting shares has not occurred on the principal stock exchange, such other stock exchange or such other organized market on which such requisite trading has occurred as the directors of Amalco shall determine) over the last 10 trading days on which at least one board lot of voting shares has traded on the principal stock exchange (or such other stock exchange or such other organized market) in the period ending on the trading day immediately preceding the redemption date; or
(b) if the requisite trading of voting shares has not occurred on any stock exchange or other organized market, on such basis as the directors of Amalco shall determine.
7. Procedures Relating to Sale and Redemption
7.1 In the event of any sale or redemption of excess voting shares in accordance with section 5 or 6, respectively, Amalco shall deposit an amount equal to the amount of the net proceeds of sale or the redemption price, respectively, in a special account in any bank or trust company in Canada selected by it. The amount of the deposit, less the reasonable costs of administration of the special account, shall be payable to the registered holder of the excess voting shares sold or redeemed on presentation and surrender by the registered holder to that bank or trust company of the certificate or certificates representing the excess voting shares. Any interest earned on any amount so deposited shall accrue to the benefit of Amalco.
7.2 From and after any deposit made pursuant to subsection 7.1, the registered holder shall not be entitled to any of the remaining rights of a registered holder in respect of the excess voting shares sold or redeemed, other than the right, to receive the funds so deposited on presentation and surrender of the certificate or certificates representing the excess voting shares sold or redeemed.
7.3 If a part only of the voting shares represented by any certificate is sold or redeemed in accordance with section 5 or 6, respectively, Amalco shall, on presentation and surrender of such certificate and at the expense of the registered holder, issue a new certificate representing the balance of the voting shares.
7.4 So soon as is reasonably practicable after, and, in any event, not later than 30 days after, a deposit made pursuant to subsection 7.1, Amalco shall send a notice to the registered holder of the excess voting shares sold or redeemed and the notice shall state:
(a) that a specified number of voting shares has been sold or redeemed, as the case may be;
(b) the amount of the net proceeds of sale or the redemption price, respectively;
(c) the name and address of the bank or trust company at which Amalco has made the deposit of the net proceeds of sale or the redemption price, respectively; and
(d) all other relevant particulars of the sale or redemption, respectively.
7.5 For greater certainty, Amalco may sell or redeem excess voting shares in accordance with section 5 or 6, respectively, despite the fact that Amalco does not possess the certificate or certificates representing the excess voting shares at the time of the sale or redemption. If, in accordance with section 5, Amalco sells excess voting shares without possession of the certificate or certificates representing the excess voting shares, Amalco shall issue to the purchaser of such excess voting shares or its nominee a new certificate or certificates representing the excess voting shares sold. lf, in accordance with section 5 or section 6, Amalco sells or redeems excess voting shares without possession of the certificate or certificates representing the excess voting shares and, after the sale or redemption, a person establishes that it is a bona fide purchaser of the excess voting shares sold or redeemed, then, subject to applicable law:
(a) the excess voting shares held or beneficially owned by the bona fide purchaser are deemed to be, from the date of the sale or redemption by Amalco, as the case may be, validly issued and outstanding voting shares in addition to the excess voting shares sold or redeemed; and
(b) notwithstanding subsection 7.2, Amalco is entitled to the deposit made pursuant to subsection 7.1 and, in the case of a sale in accordance with section 5, shall add the amount of the deposit to the stated capital account for the class of voting shares issued.
8. Exceptions
8.1 Notwithstanding section 2, the individual share constraint does not apply in respect of voting shares of Amalco that are held:
(a) by the Minister in trust for Her Majesty in right of Canada;
(b) by one or more underwriters solely for the purpose of distributing the voting shares to the public; or
(c) by any person who provides centralized facilities for the clearing of trades in securities and is acting in relation to trades in the voting shares solely as an intermediary in the payment of funds or the delivery of securities, or both.
9. Saving Provisions
9.1 Notwithstanding any other provision of this Schedule B:
(a) the directors of Amalco may determine to pay a dividend or to make any other distribution on voting shares that would otherwise be prohibited by any other provision of this Schedule B where the contravention of the individual share constraint that gave rise to the prohibition was inadvertent or of a technical nature or it would otherwise be inequitable not to pay the dividend or make the distribution; and
(b) where a dividend has not been paid or any other distribution has not been made on voting shares as a result of a directors determination of a contravention of the individual share constraint, or where the amount of a dividend or any other distribution has been restored to Amalco pursuant to paragraph 2.5(b) as a result of a directors determination of a contravention of the individual share constraint, the directors of Amalco shall declare and pay the dividend, make the distribution, or refund the restored amount, respectively, if they subsequently determine that no such contravention occurred.
9.2 In the event that Amalco suspends or redeems voting shares in accordance with section 4 or 6, respectively, or otherwise redeems, purchases for cancellation or otherwise acquires voting shares, and the result of such action is that any person and the associates of that person who, prior to such action, were not in contravention of the individual share constraint are, after such action, in contravention, then, notwithstanding any other provision of this Schedule B, the sole consequence of such action to that person and the associates of that person, in respect of the voting shares of that person and of the associates of that person held, beneficially owned or controlled at the time of such action, shall be that the number of votes attached to those voting shares shall be reduced to a number that is the largest whole number of votes that may be attached to the voting shares which that person and the associates of that person could hold, beneficially own or control from time to time in compliance with the individual share constraint.
9.3 Notwithstanding any other provision of this Schedule B, a contravention of the individual share constraint shall have no consequences except those that are expressly provided for in this Schedule B. For greater certainty but without limiting the generality of the foregoing:
(a) no transfer, issue or ownership of, and no title to, voting shares;
(b) no resolution of shareholders (except to the extent that the result thereof is affected as a result of a directors determination under paragraph 2.5(a)); and
(c) no act of Amalco, including any transfer of property to or by Amalco;
shall be invalid or otherwise affected by any contravention of the individual share constraint.
10. Directors Determinations
10.1 The directors of Amalco shall have the sole right and authority to administer the provisions of this Schedule B and to make any determination required or contemplated hereunder. In so acting, the directors of Amalco shall enjoy, in addition to the powers set forth in this Schedule B, all of the powers necessary or desirable, in their opinion, to carry out the intent and purpose of this Schedule B. The directors of Amalco shall make on a timely basis all determinations necessary for the administration of the provisions of this Schedule B and, without limiting the generality of the foregoing, if the directors of Amalco consider that there are reasonable grounds for believing that a contravention of the individual share constraint has occurred or will occur, the directors shall make a determination with respect to the matter. Any directors determination that is not inconsistent with the Petro-Canada Public Participation Act and other applicable law shall be conclusive, final and binding except to the extent modified by any subsequent directors determination. Notwithstanding the foregoing, the directors of Amalco may delegate, in whole or in part:
(a) their power to make a directors determination in respect of any particular matter to a committee of the board of directors; and
(b) any of their other powers under this Schedule B in accordance with subsection 115(3) or paragraph 121(a) of the Canada Business Corporations Act.
10.2 The directors of Amalco shall make any directors determination contemplated by section 2:
(a) after the relevant shareholders declarations have been requested and received by Amalco, only:
(i) on a basis consistent with those shareholders declarations; or
(ii) if the directors of Amalco are of the opinion that the shareholders declarations do not contain adequate or accurate information and they believe and have reasonable grounds for believing that they will not be provided with shareholders declarations that do contain adequate and accurate information; or
(b) whether or not any shareholders declaration has been requested or received by Amalco, only if the directors of Amalco believe and have reasonable grounds for believing that they have sufficient information to make the directors determination, that the consequences of the directors determination would not be inequitable to those affected by it and that it would be impractical, under all the circumstances, to request or to await the receipt of any shareholders declaration.
10.3 In administering the provisions of this Schedule B, including, without limitation, in making any directors determination in accordance with subsection 10.2 or otherwise, the directors of Amalco may rely on any information on which the directors consider it reasonable to rely in the circumstances. Without limiting the generality of the foregoing, the directors of Amalco may rely upon any shareholders declaration, the securities register of Amalco, the knowledge of any director, officer or employee of Amalco or any advisor to Amalco and the opinion of counsel to Amalco.
10.4 In administering the provisions of this Schedule B, including, without limitation, in making any directors determination, the directors shall act honestly and in good faith. Provided that the directors of Amalco so act, they shall not be liable to Amalco and neither they nor Amalco shall be liable to any holder or beneficial owner of voting securities or any other person for, nor with respect to any matter arising from or related to, any act or omission to act in relation to this Schedule B. To the extent that, in accordance with subsection 10.1, any other person exercises the powers of the directors of Amalco under these provisions, this subsection 10.4 applies mutatis mutandis.
10.5 Any directors determination required or contemplated by this Schedule B shall be expressed and conclusively evidenced by a resolution duly adopted.
11. Shareholders Declarations
11.1 For purposes of monitoring the compliance with and of enforcing the provisions of this Schedule B, the directors of Amalco may require that any registered holder or beneficial owner, or any other person of whom it is, in the circumstances, reasonable to make such request, file with Amalco or its registrar and transfer agent a completed shareholders declaration. The directors of Amalco shall determine from time to time written guidelines with respect to the nature of the shareholders declaration to be requested, the times at which shareholders declarations are to be requested and any other relevant matters relating to shareholders declarations.
11.2 A shareholders declaration shall be in the form from time to time determined by the directors of Amalco pursuant to subsection 11.1 and, without limiting the generality of the foregoing, may be required to be in the form of a simple declaration in writing or a statutory declaration under the Canada Evidence Act. Without limiting the generality of its contents, any shareholders declaration may be required to contain information with respect to:
(a) whether the person is the beneficial owner of or controls particular voting securities or whether any other person is the beneficial owner of or controls those voting securities; and
(b) whether the person is an associate of any other person, including whether the person and any other person act, or are parties to an agreement or an arrangement, a purpose of which is to require them to act, in concert with respect to their interests, direct or indirect, in Amalco.
SCHEDULE C TO PLAN OF ARRANGEMENT
OTHER RESTRICTIONS
1. INTERPRETATION |
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1.1 In this Schedule C, all terms that are not defined have the meanings attributed to those terms in the Petro-Canada Public Participation Act. |
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2. HEAD OFFICE |
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2.1 The head office of Amalco shall be situated in Calgary, Alberta. |
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3. RESTRICTION ON SALE OF ASSETS |
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3.1 Amalco shall not sell, transfer or otherwise dispose of, whether by one transaction or event or several related transactions or events, all or substantially all of its assets to any one person or group of associated persons or to non-residents, otherwise than by way of security only in connection with the financing of Amalco. |
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4. USE OF OFFICIAL LANGUAGES BY THE PUBLIC |
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4.1 Amalco shall ensure that any member of the public can, in either official language, communicate with and obtain available services from: |
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(a) |
the head office of Amalco; and |
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any of the other offices or facilities of Amalco and any office or facility of any of the wholly-owned subsidiaries of Amalco, where Amalco determines that there is significant demand for communications with and services from that office or facility in the language. |
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4.2 Amalco shall adopt from time to time policies describing the manner in which Amalco will fulfill the requirements of section 4.1. |
I hereby certify this to be a true copy of |
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the original |
order |
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Dated this |
5 day of June/07 |
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for Clerk of the Court |
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Action No. 0901-06284
IN THE COURT OF QUEENS BENCH OF ALBERTA
JUDICIAL DISTRICT OF CALGARY
IN THE MATTER OF SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT , R.S.C. 1985, c. C-44, AS AMENDED
AND IN THE MATTER OF A PROPOSED ARRANGEMENT INVOLVING SUNCOR ENERGY INC., PETRO-CANADA, CERTAIN SUBSIDIARIES OF SUNCOR ENERGY INC. AND PETRO-CANADA, THE SHAREHOLDERS OF SUNCOR ENERGY INC. AND THE SHAREHOLDERS OF PETRO-CANADA
BEFORE THE HONOURABLE MADAM |
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AT THE COURT HOUSE AT CALGARY, |
JUSTICE B.E.C. ROMAINE |
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ALBERTA, ON FRIDAY, THE 5 TH DAY OF JUNE, |
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2009 |
FINAL ORDER
UPON the Joint Petition (the Petition ) of Suncor Energy Inc. ( Suncor ) and Petro-Canada (collectively, the Petitioners ) for an Order approving a proposed arrangement involving, among others, Suncor and Petro-Canada (the Arrangement ) under section 192 of the Canada Business Corporations Act , R.S.C. 1985, c. C 44, as amended (the CBCA );
AND UPON reading the Petition and the Affidavits of J. Kenneth Alley, the Senior Vice President and Chief Financial Officer of Suncor, sworn April 28, 2009 and June 4, 2009, and the Affidavits of Ernest F.H. Roberts , the Executive Vice-President and Chief Financial Officer of Petro-Canada, sworn April 29, 2009 and June 4, 2009;
AND UPON hearing counsel for Suncor and counsel for Petro-Canada;
AND UPON being advised that the Director appointed under the CBCA (the Director ) has been served with notice of this application as required by subsection 192(5) of the CBCA and that the Director does not intend to appear at this application;
AND UPON IT APPEARING that an annual general and special meeting (the Suncor Meeting ) of holders of common shares of Suncor (the Suncor Shareholders ) was called and conducted in accordance with the Interim Order of this Honourable Court dated April 29, 2009 (the Interim Order ), that the required quorum was present at the Suncor Meeting, and that the Suncor Shareholders approved the Arrangement in the manner and by the requisite majority provided for in the Interim Order;
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AND UPON IT APPEARING that an annual general and special meeting (the Petro-Canada Meeting ) of holders of common shares of Petro-Canada (the Petro-Canada Shareholders ) was called and conducted in accordance with the Interim Order, that the required quorum was present at the Petro-Canada Meeting, and that the Petro-Canada Shareholders approved the Arrangement in the manner and by the requisite majority provided for in the Interim Order;
AND UPON IT APPEARING that it is not practicable to effect the transactions contemplated by the Arrangement under any other provision of the CBCA;
AND UPON BEING SATISFIED based upon the evidence presented that the terms and conditions of the Arrangement and the procedures relating thereto are fair and reasonable to the Suncor Shareholders and the Petro-Canada Shareholders and that the Arrangement ought to be approved;
AND UPON BEING ADVISED that the approval of the Arrangement by this Court will constitute the basis for an exemption from the registration requirements of the United States Securities Act of 1933, as amended, pursuant to section 3(a)(10) thereof, with respect to the shares of the amalgamated corporation to be named Suncor Energy Inc. to be issued under the Arrangement.
IT IS HEREBY ORDERED, DECLARED, AND DIRECTED THAT:
1. The Plan of Arrangement proposed by the Petitioners in the form attached as Schedule 1.1 (a) to the Arrangement Agreement made as of March 22, 2009 between Suncor and Petro-Canada, in the form as it appears in Appendix C to the Joint Information Circular and Proxy Statement of Suncor and Petro-Canada dated April 29, 2009 is hereby approved by this Honourable Court under section 192 of the CBCA and will, upon the filing of the Articles of Arrangement under the CBCA and the issuance of a certificate of arrangement by the Director, become effective in accordance with its terms and be binding on each of the Petitioners and all other persons.
2. The terms and conditions of the Arrangement, and the procedures relating thereto, are fair and reasonable, substantively and procedurally, to the Suncor Shareholders and the Petro-Canada Shareholders.
3. The Articles of Arrangement with respect to the Arrangement shall be filed pursuant to section 192 of the CBCA on such date as Suncor and Petro-Canada determine.
4. The service of notice of this application, the notices in respect of the Suncor Meeting and of the Petro-Canada Meeting, and of the Interim Order is hereby deemed good and sufficient.
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5. Service of this Order shall be made on all such persons who appeared at this application, either by counsel or in person, and upon the Director.
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J.C.Q.B.A. |
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ENTERED at Calgary, Alberta, |
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June 5, 2009. |
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/s/ V.A. BRANDT |
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CLERK OF THE COURT |
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Exhibit 4.3
SUNCOR ENERGY INC.
STOCK OPTION PLAN
Effective August 1, 2009
TABLE OF CONTENTS
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Page |
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ARTICLE 1 DEFINITIONS |
K-3 |
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ARTICLE 2 GENERAL |
K-5 |
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2.1 |
Purpose |
K-5 |
2.2 |
Administration |
K-5 |
2.3 |
Interpretation |
K-6 |
2.4 |
Selection for Participation |
K-6 |
2.5 |
Types of Awards under this Plan |
K-6 |
2.6 |
Shares Subject to this Plan |
K-6 |
2.7 |
Award Agreements |
K-7 |
2.8 |
Non-transferability |
K-7 |
ARTICLE 3 SHARE OPTIONS AND SHARE APPRECIATION RIGHTS |
K-8 |
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3.1 |
Award of Options and SARs |
K-8 |
3.2 |
Exercise Term |
K-8 |
3.3 |
Exercise Price |
K-8 |
3.4 |
Payment of Exercise Price |
K-8 |
3.5 |
Share Appreciation Rights |
K-8 |
3.6 |
Death of a Participant |
K-8 |
3.7 |
Permitted Leave |
K-8 |
3.8 |
Retirement of Participant |
K-9 |
3.9 |
Termination for Cause |
K-9 |
3.10 |
Other Involuntary Termination of Employment |
K-9 |
3.11 |
Voluntary Termination of Employment |
K-9 |
3.12 |
Discretion to Permit Exercise |
K-9 |
ARTICLE 4 LIMITED APPRECIATION RIGHTS |
K-9 |
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4.1 |
Award of LARs |
K-9 |
ARTICLE 5 OTHER SHARE-BASED AWARDS |
K-10 |
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5.1 |
Other Share-Based Awards under this Plan |
K-10 |
5.2 |
Consideration for Other Share-Based Awards |
K-10 |
5.3 |
Payment of Consideration |
K-10 |
5.4 |
Maximum Number of Shares Issuable for Non-Cash Consideration |
K-10 |
ARTICLE 6 NON-DISCRETIONARY AWARDS TO NON-EMPLOYEE DIRECTORS |
K-10 |
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6.1 |
General |
K-10 |
ARTICLE 7 ISSUANCE OF SHARES ON ACCOUNT OF DIRECTORS FEES |
K-10 |
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7.1 |
General |
K-10 |
ARTICLE 8 REORGANIZATION OF THE COMPANY |
K-10 |
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8.1 |
General |
K-10 |
8.2 |
Reorganization of Companys Capital |
K-11 |
8.3 |
Other Events Affecting the Company |
K-11 |
8.4 |
Immediate Exercise of Awards |
K-11 |
8.5 |
Issue by Company of Additional Shares |
K-11 |
ARTICLE 9 MISCELLANEOUS PROVISIONS |
K-11 |
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9.1 |
Legal Requirement |
K-11 |
9.2 |
Rights of Participant |
K-11 |
9.3 |
Amendment or Discontinuance |
K-12 |
9.4 |
Indemnification |
K-12 |
9.5 |
Effective Date |
K-12 |
9.6 |
Governing Law |
K-12 |
APPENDIX A LIMITED APPRECIATION RIGHTS AWARDS |
K-13 |
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APPENDIX B NON-DISCRETIONARY AWARDS TO NON-EMPLOYEE DIRECTORS |
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APPENDIX C ISSUANCE OF SHARES ON ACCOUNT OF DIRECTORS FEES |
K-16 |
ARTICLE 1
DEFINITIONS
When used herein, the following terms shall have the following meanings:
(a) Annual Grant has the meaning attributed thereto in paragraph 2(a) of Appendix B;
(b) Annual Share Payment has the meaning attributed thereto in paragraph 1 of Appendix C;
(c) Associated Company means any subsidiary or partnership of the Company;
(d) Award means an award granted or permitted to be granted under this Plan as contemplated by paragraph 2.5 of this Plan;
(e) Award Agreement means a signed written agreement evidencing the terms and conditions upon which an Award may be granted under this Plan, or a certificate issued by the Company, in such form as may be approved by the Board or Committee from time to time, which evidences the grant of an Award;
(f) Blackout means a temporary trading ban announced by the Company pursuant to its trading policies, whether a regularly scheduled trading ban in connection with the release of quarterly financial information, or an ad hoc trading ban, but excludes any period during which a regulator has halted trading in the Companys securities;
(g) Blackout Exercise Term means, with respect to holders of Options, ten (10) days after the expiry of a Blackout if the Exercise Term of the Options expired: (i) during the Blackout; or (ii) within three (3) days of the Blackout expiring, if the holder of such Options was subject to the Blackout;
(h) Board means the Board of Directors of the Company;
(i) CEO means the Chief Executive Officer of the Company;
(j) Change of Control means a transaction or series of transactions whereby any person or combination of persons, acting jointly or in concert, beneficially owns, directly or indirectly, or exercises control or direction over, thirty-five percent (35%) or more of the outstanding voting securities of the Company or any person formed by the merger, amalgamation, consolidation or statutory arrangement of the Company with or into any other person; provided that for the purposes of the LARs only held by persons who are U.S. Taxpayers, in the event the foregoing definition is inconsistent with the definition of change of control for the purposes of application of section 409A (or any amended or successor provision thereof) of the U.S. Tax Code, the definition of change of control in section 409A (or any amended or successor provision thereof) of the U.S. Tax Code shall apply. For the purposes of this definition, person includes an individual, partnership, association, organization, government or governmental body, body corporate or other entity;
(k) Change of Control Transaction means, for the purposes of determining a Participants entitlement in respect of any outstanding LARs, a transaction in which there is a Change of Control which generally effects all common shareholders of the Company and provides such shareholders with an opportunity to realize an equal amount per share in respect of their proportionate holdings of Shares. In the event that there is any question as to whether a change of control transaction has occurred in any circumstances, the Board shall determine the matter and any such determination of the Board shall be final and conclusive for the purposes of this Plan;
(l) Committee means a committee of the members of the Board;
(m) Company means Suncor Energy Inc., a corporation amalgamated under the Canada Business Corporations Act and any successor company;
(n) Designated Person has the meaning attributed thereto in paragraph 2.2(c);
(o) Director means an individual member of the Board;
K-3
(p) Directors Annual Retainer means the basic annual retainer fee payable to each Director who has not waived payment thereof in respect of his or her services as a member of the Board, as determined by the Company from time to time;
(q) Disability Benefits means benefits other than normal sick leave payments from payroll to which a Participant becomes entitled under a disability program of the Company or an Associated Company;
(r) Effective Date means the effective date of the arrangement as defined in the arrangement agreement dated March 22, 2009 between Suncor Energy Inc. and Petro-Canada;
(s) Employee means a person who provides services to the Company or an Associated Company and from whose remuneration the Company deducts and withholds Canada Pension Plan and Employment Insurance remittances, or similar withholdings under applicable law of any jurisdiction other than Canada relating to source withholding from pay by an employer;
(t) Executives means executives and senior managers of the Company or its Associated Companies and includes, where applicable, the relevant Directors;
(u) Exercise Notice means a notice in writing signed by the Participant stating the Participants intention to exercise a particular Option, SAR, LAR or other Award;
(v) Exercise Price means the price at which a Share may be purchased pursuant to the exercise of an Option or SAR;
(w) Exercise Term means the period of time during which Options, SARs, LARs or other Awards may be exercised;
(x) Initial Grant has the meaning attributed thereto in paragraph 2(a) of Appendix B;
(y) LAR has the meaning attributed thereto by paragraph 4.1 and Appendix A to this Plan;
(z) Market Value means the value represented by the simple average of the high and low prices at which Shares were traded in one or more board lots on the TSX on the day prior to the relevant date or, if the Shares were not so traded on that day, the value represented by the simple average of the high and low prices at which the Shares were traded in one or more board lots on the TSX on the first day prior to the relevant date on which Shares were so traded;
(aa) Non-Employee Director means at any particular time, any Director at such time who is not an officer of the Company or one of its Associated Companies or an Employee;
(bb) Option means an Award that may be granted to a Participant which allows the Participant to purchase Shares at a set price for a future period which does not exceed seven (7) years;
(cc) Other Share-Based Awards has the meaning attributed thereto in paragraph 5.1;
(dd) Participants means those Employees whose selection to participate in this Plan is approved by the Board, regardless of whether he or she serves as such in an executive capacity or on a full- or part-time basis, and also includes, for purposes of Articles 6 and 7 and the related appendices only, the relevant Directors;
(ee) Pension Plans means all foreign and domestic pension plans of the Company, including but not limited to, the Suncor Energy Pension Plan, the Suncor Energy U.S. Pension Plan and the Petro-Canada pension plans, and any pension plan(s) of the Company that may be in effect from time to time, as applicable;
(ff) Permitted Leave means any period of absence from normal work due to a leave of absence of greater than sixty (60) days in duration, during which the Participant continues to maintain his or her status as an Employee as conclusively determined by the Company in its discretion. For certainty, any maternity or paternity leave, education leave, or Employee receiving Disability Benefits, in each case of greater than sixty (60) days in duration, shall be deemed to be a Permitted Leave within the meaning of this Plan;
(gg) Petro-Canada Options means the 24,276,389 options to purchase shares of Petro-Canada which were granted under the Petro-Canada Plan and which were outstanding as at April 27, 2009, which, following the Effective Date,
K-4
would, if all such options remained outstanding at the Effective Date, represent options to purchase 31,073,778 Shares;
(hh) Petro-Canada Plan means the Petro-Canada Employee Stock Option Plan, as amended and restated to April 26, 2005;
(ii) Plan means this Stock Option Plan, including all appendices thereto, as same may be amended or restated from time to time;
(jj) Plan Maximum has the meaning attributed thereto in paragraph 2.6(a);
(kk) Related Option has the meaning attributed thereto in paragraph 2(b) of Appendix A;
(ll) Retirement means, in the case of a Participant who is not a Director, a Participants termination of employment on a date on which such Employee would be eligible for an immediately payable benefit pursuant to the terms of the Pension Plans, or such other date the Employee is deemed to be eligible for retirement as defined in the applicable Pension Plan, or, termination of employment of any Employee at or over the age of fifty-five (55) whom the Company deems shall be treated as a retiree under the provisions of this Plan and, in the case of a Director, shall mean the date on which such person shall cease to be a Director;
(mm) SAR has the meaning attributed thereto in paragraph 3.5 and includes Tandem SARs as the context requires;
(nn) Settlement Day means the third Trading Day following the date of exercise in respect of any particular exercise of an Option;
(oo) Shares means the common shares of the Company;
(pp) Specified Percentage has the meaning attributed thereto in paragraph 1 of Appendix C;
(qq) Tandem SARs has the meaning attributed thereto in paragraph 3.5;
(rr) Termination Date has the meaning attributed thereto in paragraph 2.3(c);
(ss) Trading Day means a day on which the TSX is open for trading in securities;
(tt) TSX means The Toronto Stock Exchange; and
(uu) U.S. Taxpayer means a person who is required by the laws of the United States of America to file a U.S. federal income tax return.
ARTICLE 2
GENERAL
2.1 Purpose
The principal purpose of this Plan is to provide Employees with an opportunity to receive a variety of different forms of compensation awards. The Plan is designed to be flexible in order to provide recipients of Awards hereunder with incentives for continued improved performance thereby promoting the long term financial success of the Company and materially increasing shareholder value by: (i) attracting and retaining individuals of exceptional ability; (ii) strengthening the Companys capability to develop, maintain and direct a competent management team; (iii) motivating Executives and other Employees, by means of performance related incentives, to achieve long-range performance goals; (iv) providing incentive compensation opportunities competitive with those of other major oil and gas companies; and (v) enabling individuals who receive Awards hereunder to participate in the long-term growth and financial success of the Company.
2.2 Administration
(a) The Plan shall be administered by the Board.
K-5
(b) Except for matters governed by Articles 6 and 7 of this Plan, and Appendices B and C relating thereto, in respect of which the Board shall have limited authority as provided therein, the Board shall have the sole and complete authority: (i) to approve the selection of Participants; (ii) to make Awards in such forms and amounts as it shall determine; (iii) to impose such limitations, restrictions, and conditions upon such Awards as it shall deem appropriate; (iv) to interpret this Plan and to adopt, amend and rescind administrative guidelines and other rules and regulations relating to this Plan; and (v) to make all other determinations and take all other actions necessary or advisable for the implementation and administration of this Plan. The Boards determinations and actions within its authority under this Plan shall be conclusive and binding upon the Company and all other persons.
(c) To the extent permitted by law, the Board may from time to time delegate to a Committee or, where appropriate, to the CEO all or any of the powers conferred on the Board under this Plan, with the authority of the Committee or CEO, as applicable, to further delegate such powers from time to time to the senior officer responsible for human resources of the Company (the Designated Person ). In such event, the Committee, CEO or Designated Person shall exercise the delegated powers in the manner and on the terms authorized by the Board, and all references herein to the Board or to the Committee shall include the Board, the Committee, the CEO or Designated Person, as applicable. Any decision made or action taken by the Board, the Committee, the CEO or Designated Person arising out of or in connection with the administration or interpretation of this Plan in this context shall be final and conclusive.
2.3 Interpretation
(a) Whenever the Board or, where permitted, the Committee, CEO or Designated Person is to exercise discretion in the administration of terms and conditions of this Plan, the term discretion shall mean the sole and absolute discretion of the Board, Committee, CEO or Designated Person, as the case may be.
(b) Whenever an Award may be granted pursuant to the terms and conditions of this Plan, or Appendix A hereto, the Committee, CEO or Designated Person may make recommendations for the Boards consideration with respect to the granting of such Awards.
(c) For the purposes of this Plan, a Participant shall be deemed to have ceased to be an Employee, and the Participants employment with the Company shall be deemed to be terminated: (i) in the case of resignation, Retirement or termination of a Participants employment by the Company, whether or not for cause and with or without reasonable or statutory notice or any period of salary continuance or deemed employment, on the date the Participant or the Company, as applicable, delivers notice of such resignation, Retirement or termination to the other party, which shall not include any period of reasonable or statutory notice or any period of salary continuance or deemed employment, or such date thereafter, if any, as the Participant and Company agree in writing shall be the effective date of resignation, Retirement or termination, as applicable, for incentive plan purposes; and (ii) in the case of a Participants death, on the date of the Participants death (the Termination Date ).
2.4 Selection for Participation
Participants shall be selected from those Employees who have the capacity to contribute to the success of the Company and its Associated Companies. In approving this selection, the Board or the Committee, CEO or Designated Person shall consider such factors as it deems relevant subject to the provisions of this Plan, as may be determined from time to time.
2.5 Types of Awards under this Plan
Awards granted under this Plan may be in the form of any one or more of the following: (i) Options; (ii) SARs; (iii) Tandem SARs; (iv) LARs (in conjunction with Options), as described in Appendix A; and (v) Other Share-Based Awards.
2.6 Shares Subject to this Plan
(a) The Shares which are the subject of Awards shall be those Shares which the Board from time to time shall at its discretion have reserved and approved for issuance under this Plan. The aggregate number of Shares which may be issued under the Plan or reserved for issuance upon the exercise of Awards made under, or otherwise governed by, the Plan, shall be limited to 46,490,680 Shares (the Plan Maximum ) which consists of the aggregate of (i) 31,073,778 Shares reserved for issuance pursuant to the exercise of Petro-Canada Options (whether such exercise were to occur on or prior to the Effective Date), and (ii) 15,416,902 additional Shares which are unallocated as at April 27, 2009 and the Effective Date, provided that, following the Effective Date, any such outstanding
K-6
Petro-Canada Options shall continue to be subject to the terms and conditions of the Petro-Canada Plan until such time as they are exercised or terminated or they expire or are cancelled pursuant to the applicable terms and conditions of the Petro-Canada Plan; if for any reason, any Shares subject to purchase by exercising Options or Petro-Canada Options are not delivered or are reacquired by the Company, for reasons including but not limited to, termination, expiration or cancellation of an Option or Petro-Canada Option (pursuant to the terms and conditions of the Plan or the Petro-Canada Plan, respectively), such Shares shall again become available for the granting of Options under this Plan (and for greater certainty, the Shares reserved for issuance upon the exercise of Petro- Canada Options shall only become available for issuance in respect of Options granted under this Plan following the time, if any, at which a Petro-Canada Option is terminated, expires or is cancelled without the resulting issuance of a Share or a share of Petro-Canada, as applicable, including in respect of any such termination, cancellation or expiry which occurred between April 27, 2009 and the Effective Date). Of such Plan Maximum, the aggregate number of Shares which may be issued or reserved for issuance pursuant to the provisions of Appendices B and C of this Plan shall be 500,000 Shares. Notwithstanding the foregoing, the aggregate number of Shares which may be reserved for issuance under this Plan and under all other security based compensation arrangements of the Company: (i) must not exceed ten percent (10%) of the issued and outstanding Shares of the Company (on a non-diluted basis); (ii) to any one (1) person must not exceed five percent (5%) of the issued and outstanding Shares (on a non-diluted basis); and (iii) must not, within any one (1) year period be issued, or at any time under such security based compensation arrangements be issuable, to insiders of the Company in an amount exceeding ten percent (10%) of the Companys total issued and outstanding securities (for the purposes of this paragraph, security based compensation arrangement and insider have the meanings attributed thereto in the TSX Company Manual).
(b) Subject to stock exchange approval where required, the Board may, in its discretion, decide to award shares of another authorized class or series of shares of the Company that are convertible into Shares or make such other shares subject to purchase under an Option, in which event the maximum number of Shares into which such other shares may be converted shall be used in applying the aggregate share limit under paragraph 2.6(a) and all provisions of this Plan relating to Shares shall apply with full force and effect with respect to such convertible shares.
2.7 Award Agreements
All grants of Awards shall be evidenced by an Award Agreement. Such Award Agreement shall be subject to the applicable provisions of this Plan and shall contain such provisions as are required by this Plan and any other provisions which are necessary or desirable to give effect to the Award and the provisions of this Plan. Any proper officer of the Company is authorized and empowered to execute on behalf of the Company and deliver any Award Agreement to the Participants from time to time designated by the Board or, where permitted, the Committee, the CEO or the Designated Person. Award Agreements may be executed by original, facsimile or electronic signature.
2.8 Non-transferability
Subject to paragraph 3.6 relating to Options and SARs, the provisions of Appendix A to this Plan relating to LARs, and the provisions of Appendix B to this Plan relating to Options and LARs, any Awards granted under this Plan may only be exercised during the lifetime of the Participant by such Participant personally and no assignment or transfer of Awards, whether voluntary, involuntary, by operation of law or otherwise, shall vest any interest or right in such Awards whatsoever in any assignee or transferee, but immediately upon any assignment or transfer, or any attempt to make the same, such Awards shall terminate and be of no further force or effect.
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ARTICLE 3
SHARE OPTIONS AND SHARE APPRECIATION RIGHTS
3.1 Award of Options and SARs
The Board or, where permitted, the Committee, CEO or Designated Person may, from time to time, subject to the provisions of this Plan and such other terms and conditions as the Board may prescribe, award Options and/or SARs (either in conjunction with Options as Tandem SARs or standing alone) to any Participant.
3.2 Exercise Term
(a) The maximum term during which Options and SARs may be exercised shall be determined by the Board, but in no event shall the Exercise Term of an Option or SAR exceed seven (7) years from the date of its grant, unless the Exercise Term has been extended by a Blackout Exercise Term.
(b) Subject to paragraph 3.2(a), the provisions of this Plan and any Award Agreement, Options and SARs may be exercised by means of giving an Exercise Notice addressed to the Company. Where Options or SARs are exercised, they shall be deemed to have been exercised on the date that the Exercise Notice in respect of such Options or SARs is received by the Treasurer or Secretary of the Company at the Companys head office.
3.3 Exercise Price
The Exercise Price of any Option must not be less than the Market Value of a Share as determined on the date of the granting of the Option.
3.4 Payment of Exercise Price
The Exercise Price shall be fully paid on or before the Settlement Day. No Shares shall be issued or transferred until full payment has been received therefor. As soon as practicable after receipt of any Exercise Notice and full payment, the Company shall deliver to the eligible Participant, a certificate or certificates representing the acquired Shares.
3.5 Share Appreciation Rights
The Board may grant share appreciation rights ( SARs ) either alone or in conjunction with the granting of an Option ( Tandem SARs ). Where SARs are granted on a stand alone basis, the SARs shall entitle the Participant to receive, upon the exercise of the SARs, a payment in the aggregate amount of the number of SARs exercised, multiplied by the excess of the Market Value of a Share determined on the date of exercise of the SARs over the Market Value of a Share determined on the date of grant of the SARs. Tandem SARs shall entitle the Participant to receive, upon the exercise of the Tandem SARs, a payment in the aggregate amount of the number of Tandem SARs exercised, multiplied by the excess of the Market Value of a Share determined on the date of exercise of the Tandem SARs over the Exercise Price of the related Options.
3.6 Death of a Participant
Notwithstanding the provisions of paragraph 2.8, if a Participants employment with the Company or any Associated Company or appointment as a Director is terminated by reason of death, all Options and/or SARs held by the Participant shall become exercisable by the lawful representative of such Participants estate on the date of death. The right to exercise any such Options or SARs held by the Participant shall terminate upon the earlier of: (i) a period of twelve (12) months from the date of death; and (ii) the expiration of the Exercise Term of the particular Option and/or SAR.
3.7 Permitted Leave
If a Participant is absent from work as a result of Permitted Leave, the Participant shall have the right to exercise the Option and/or SAR to the extent that the Option and/or SAR was exercisable at the date of commencement of such Permitted Leave and furthermore Options and/or SARs held by the Participant at the date the Participant is absent from work as a result of Permitted Leave shall continue to vest and become exercisable for a period of twenty-four (24) months from the date of commencement of such Permitted Leave and the right to exercise the Option and/or SAR shall terminate upon the earlier of: (a) the expiration of twelve (12) months from the date that is twenty-four (24) months from the date of commencement of the Participants Permitted Leave; or (b) the expiration of the Exercise Term of the particular Option and/or SAR. If the
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Participant has not returned to active service as an Employee prior to the expiration of twenty-four (24) months from the date of commencement of such Permitted Leave then the Options and/or SARs held by the Participant which were not exercisable twenty-four (24) months from the date of commencement of such Permitted Leave shall immediately terminate.
3.8 Retirement of Participant
If a Participants employment with the Company or any Associated Company or appointment as a Director is terminated by reason of Retirement, all Options and/or SARs held by the Participant shall become exercisable on the effective date of Retirement. The right to exercise any such Options and/or SARs held by the Participant shall terminate upon the earlier of: (i) a period of thirty-six (36) months from the effective date of Retirement; and (ii) the expiration of the Exercise Term of the particular Option and/or SAR.
3.9 Termination for Cause
Where a Participants employment with the Company or any Associated Company is terminated for cause, any Options and/or SARs held by the Participant shall be cancelled immediately upon the date of such termination.
3.10 Other Involuntary Termination of Employment
Where a Participants employment with the Company or any Associated Company is terminated by the Company or any Associated Company for any reason other than as set out in paragraphs 3.6, 3.7, 3.8 and 3.9, any Options and/or SARs held by the Participant which are exercisable at the Termination Date shall continue to be exercisable by the Participant until the earlier of: (i) three (3) months from the Termination Date; and (ii) the expiration of the Exercise Term of the particular Option and/or SAR. Any Options and/or SARs held by the Participant which are not exercisable at the Termination Date shall immediately terminate.
3.11 Voluntary Termination of Employment
Where a Participant voluntarily resigns his or her employment with the Company or any Associated Company, other than by means of Retirement, any Options and/or SARs held by the Participant which are exercisable at the date of such voluntary termination of employment shall continue to be exercisable by the Participant until the earlier of: (i) three (3) months from the date of such voluntary termination; and (ii) the expiration of the Exercise Term of the particular Option or SAR. Any Options and/or SARs held by the Participant which are not exercisable at the date of such termination of employment shall immediately terminate.
3.12 Discretion to Permit Exercise
Notwithstanding the provisions in paragraphs 3.6 to 3.11 inclusive, the Board may, in its discretion, at any time prior to or following the events contemplated in such paragraphs, permit the exercise of any or all Options and/or SARs held by a Participant in the manner and on the terms authorized by the Board. However, in no case shall the Board authorize the exercise of an Option and/or SAR pursuant to this paragraph beyond the expiration of the Exercise Term of the particular Option and/or SAR.
ARTICLE 4
LIMITED APPRECIATION RIGHTS
4.1 Award of LARs
Subject to the provisions of this Plan, including, without limitation, Appendix A hereto and such other terms and conditions as the Board may prescribe, the Board may award limited appreciation rights ( LARs ) to any Participant. The specific terms and conditions governing awards of LARs are set forth in Appendix A to this Plan.
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ARTICLE 5
OTHER SHARE-BASED AWARDS
5.1 Other Share-Based Awards under this Plan
Subject to the provisions of this Plan and such other terms and conditions as the Board may prescribe, the Board may award to any Participant other share-based awards, including, without limitation, bonus Shares, and such other awards involving the issuance or possible issuance of Shares as the Board may consider appropriate from time to time (collectively, the Other Share-Based Awards ).
5.2 Consideration for Other Share-Based Awards
Subject to the provisions of this Plan, the Board may determine the consideration which shall be paid or provided for Shares acquired pursuant to the Other Share- Based Awards. Such consideration may consist entirely of previous services given to the Company or its Associated Companies by the Participant.
5.3 Payment of Consideration
Subject to the provisions of this Plan, the consideration for any other Share- Based Awards granted pursuant to this Plan shall be fully paid in cash or past services by the Participant at the time of the grant. No Shares shall be issued or transferred until full cash or past service payment has been received therefor. As soon as practicable, after the receipt of any full payment, the Company shall deliver to the Participant, a certificate or certificates representing the acquired Shares.
5.4 Maximum Number of Shares Issuable for Non-Cash Consideration
The aggregate number of Shares which may be issued solely for non-cash consideration (such as past services) under this Article 5 shall not exceed 1,500,000 Shares.
ARTICLE 6
NON-DISCRETIONARY AWARDS TO NON-EMPLOYEE DIRECTORS
6.1 General
Subject to the provisions of this Plan, all Non-Employee Directors may receive Options and LARs on the basis set forth in Appendix B to this Plan.
ARTICLE 7
ISSUANCE OF SHARES ON ACCOUNT OF DIRECTORS FEES
7.1 General
Subject to the provisions of this Plan, including without limitation, Appendix C hereto, Directors may be issued Shares in lieu of cash on account of a specified percentage of the Directors Annual Retainer on the basis set forth in Appendix C to this Plan.
ARTICLE 8
REORGANIZATION OF THE COMPANY
8.1 General
The existence of any Awards shall not affect in any way the right or power of the Company or its shareholders to make or authorize any adjustment, recapitalization, reorganization or any other change in the Companys capital structure or its business, or any amalgamation, combination, merger or consolidation involving the Company or to create or issue any bonds, debentures, shares or other securities of the Company or the rights and conditions attaching thereto or to effect the dissolution or liquidation of the Company or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of similar character or otherwise.
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8.2 Reorganization of Companys Capital
Should the Company effect a subdivision or consolidation of Shares or any similar capital reorganization or a payment of a stock dividend (other than a stock dividend which is in lieu of an ordinary cash dividend), or should any other change be made in the capitalization of the Company which, in the opinion of the Board, would warrant the replacement or modification of any existing Awards in order to adjust: (i) the number of Shares which may be acquired on the exercise of any outstanding Awards; (ii) the Exercise Price of any outstanding Awards; or (iii) the number of SARs and/or LARs held by Participants, in order to preserve proportionately the rights and obligations of Participants, the Board shall authorize such steps to be taken as may be equitable and appropriate to that end, subject to any required regulatory approvals. A decision of the Board in respect of any and all matters falling within the scope of this paragraph or paragraphs 8.3 and 8.4 shall be final and without recourse on the part of any Participant and his or her heirs or legal representatives.
8.3 Other Events Affecting the Company
In the event of an amalgamation, combination, merger or other reorganization involving the Company, by exchange of Shares, by sale or lease of assets, or otherwise, which in the opinion of the Board warrants the replacement or modification of any existing Awards in order to adjust: (i) the number of Shares which may be acquired on the exercise of any outstanding Awards; (ii) the Exercise Price of any outstanding Awards; (iii) the number of SARs and/or LARs held by Participants; or (iv) any other attribute of an Award, in order to preserve proportionately the rights and obligations of Participants, the Board, in its sole discretion, shall authorize such steps to be taken as may be equitable and appropriate to that end, subject to any required regulatory approvals.
8.4 Immediate Exercise of Awards
Where the Board determines that the steps provided for in paragraphs 8.2 and 8.3 would not preserve proportionately the rights and obligations of Participants in the circumstances or otherwise determines that it is appropriate, the Board may on thirty (30) days notice to each Participant, permit the immediate exercise of any outstanding Awards which are not otherwise exercisable and provide that any Awards that are not exercised within such thirty (30) day period are terminated. In addition, if a Change of Control should occur at any time the Board may provide that, any Award that is not by its terms then exercisable shall be deemed to have become exercisable immediately prior to such Change of Control and that any Award that is not exercised in connection with such Change of Control will expire on the closing of the Change of Control.
8.5 Issue by Company of Additional Shares
Except as expressly provided in this Article 8, the issue by the Company of shares of any class, or securities convertible into shares of any class, for money, services or property either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of Shares or obligations of the Company convertible into such shares or securities, shall not affect, and no adjustment by reason thereof shall be made with respect to: (i) the number of Shares which may be acquired on the exercise of any outstanding Awards; (ii) the Exercise Price of any outstanding Awards; or (iii) the number of SARs and/or LARs held by Participants.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Legal Requirement
The Company shall not be obligated to grant any Awards, issue any Shares or other securities, make any payments or take any other action if, in the opinion of the Board exercising its discretion, such action would constitute a violation by a Participant or the Company of any provision of any applicable valid statutory or regulatory enactment of any government or government agency.
9.2 Rights of Participant
No Participant shall have any claim or right to be granted an Award (including, without limitation, an Award in substitution for any Option, SAR, LAR or other Award that has expired pursuant to the terms of this Plan), and the granting of any Award shall not be construed as giving a Participant a right to remain in the employ of the Company. No Participant shall have any rights as a shareholder of the Company in respect of Shares issuable on the exercise of rights to acquire Shares under any Award until the allotment and issuance to the Participant of such Shares has occurred.
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9.3 Amendment or Discontinuance
Subject to receipt of any necessary regulatory or other approval, the Board may, without shareholder approval, at any time or from time to time, amend, suspend or terminate this Plan or the securities issued hereunder or any provisions hereof in such respects as it, in its discretion, may determine appropriate provided, however, that no amendment, suspension or termination of this Plan shall, without the consent of any Participant or the representatives of his or her estate, as applicable, materially alter or impair any rights or obligations arising from any Award previously granted to a Participant under this Plan and provided, however, that any of the following amendments will also be subject to receipt of shareholder approval:
(i) an increase in the number of securities reserved under this Plan beyond the Plan Maximum;
(ii) a reduction in an exercise price of Options, or cancellation and reissue of Options (other than as permitted by the TSX) which benefits any Participant;
(iii) an amendment that extends the term of an Award beyond its original Exercise Term;
(iv) allowing Awards to be transferable or assignable other than for normal estate settlement purposes; and
(v) any amendment that increases the maximum number of Options available for annual grants to Non-Employee Directors.
9.4 Indemnification
Every Director shall at all times be indemnified and saved harmless by the Company from and against all costs, charges and expenses whatsoever including any income tax liability arising from any such indemnification, which such Director may sustain or incur by reason of any action, suit or proceeding, proceeded or threatened against the Director, otherwise than by the Company, for or in respect of any act done or omitted by the Director in respect of this Plan, such costs, charges and expenses to include any amount paid to settle such action, suit or proceeding or in satisfaction of any judgement rendered therein.
9.5 Effective Date
This Plan shall become effective on the Effective Date.
9.6 Governing Law
This Plan is created under and shall be governed, construed and administered in accordance with the laws of the Province of Alberta and the federal laws of Canada as applicable therein.
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APPENDIX A
LIMITED APPRECIATION RIGHTS AWARDS
1. Purpose : The purpose of the award of a LAR is to provide Participants with incentive to maximize the value of the Shares during a period when the Company is subject to a Change of Control Transaction. In particular, the award of a LAR will provide designated Participants with the opportunity to realize the value inherent in their holdings of Options as a result of a Change in Control Transaction without having to exercise their Options.
2. Granting of LARs :
(a) A LAR may be granted to Participants at any time and from time to time in the discretion of the Board.
(b) A LAR granted to a Participant shall confer upon such Participant a collateral right and entitlement in respect of each and every outstanding Option and non-Tandem SAR (a Related Option ) held by the Participant during the period from the date of grant of the LAR to the date upon which the LAR expires or is otherwise cancelled or terminated, regardless of whether the Related Option is granted before, concurrently with, or after the date of grant of the LAR.
3. Entitlement Upon Exercise of a LAR : For persons who are not U.S. Taxpayers a LAR represents the right of the holder thereof, exercisable upon completion of a Change of Control Transaction, to receive a cash payment from the Company upon surrender of the Related Option equal to the amount, if any, by which:
(a) the greater of:
(i) the highest price per Share paid by a person acquiring Shares in the Change of Control Transaction, and
(ii) the highest Daily Trading Price of the Shares on TSX during the sixty (60) day period preceding the date of the Change of Control Transaction where Daily Trading Price means the average of the high and low board lot trading prices of the Shares on any particular day;
exceeds
(b) the Exercise Price of the Related Option.
4. Entitlement Upon Exercise of a LAR : For persons who are U.S. Taxpayers, a LAR represents the right of the holder thereof who is a U.S. Taxpayer, to receive a cash payment from the Company upon surrender of the Related Option equal to the amount, if any, by which:
(a) the average of the Daily Trading Price of the Shares on TSX during the thirty (30) day period preceding the date of exercise of the LAR, where Daily Trading Price means the average of the high and low board lot trading prices of the Shares on any particular day;
exceeds
(b) the Exercise Price of the Related Option.
The foregoing right is exercisable
(c) if the Shares continue to trade on TSX or the New York Stock Exchange after the Change of Control Transaction, at any time from and including the date of completion of the Change of Control Transaction up to and including the 30 th day following the date of completion of the Change of Control Transaction.
(d) If subparagraph (c) is not applicable, on the day immediately following the date of the Change of Control Transaction.
5. Manner of Exercise of LARs : Subject to the provisions hereof and any Award Agreement, a LAR attached to and forming part of any Related Option may be exercised by the Participant giving an Exercise Notice addressed to the
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Company specifying the Related Options in respect of which the LAR is exercised. The exercise of any LAR must be accompanied by the surrender of the Related Option which will thereupon be cancelled.
6. Exercise Term; Expiry and Cancellation of LARs : Subject to paragraph 7 below, a LAR granted to a Participant pursuant to the terms of this Plan will be exercisable upon completion of a Change of Control Transaction, provided that the Related Option is, by its terms, then exercisable, and the LAR will expire and be cancelled upon the earliest of: (i) the exercise of the Related Option by a Participant; (ii) the expiry of the Exercise Term of the Related Option; (iii) the expiration of the Related Option pursuant to paragraph 8.4 of this Plan; (iv) with respect to LARs held by Participants who are U.S. Taxpayers, the expiry of the exercise period for LARs following completion of a Change of Control Transaction as set out in paragraph 3.1(c) or (d) above; (v) the expiry date of the LAR as designated by the Board at the date of grant thereof; and (vi) the grant to the Participant of a new LAR on substantially the same terms as any existing LAR but with a later stated expiry date.
7. Other Events Affecting Exercise of LARs : All LARs granted to Participants pursuant to the terms of this Plan shall terminate and be of no further effect immediately upon the occurrence of any of the following events:
(a) the death of the Participant;
(b) the entitlement to Disability Benefits of the Participant;
(c) the Retirement of the Participant;
(d) the Termination Date in respect of the Participants employment with the Company, whether with or without cause and whether with or without any or reasonable notice; or
(e) the voluntary termination of his/her employment with the Company by a Participant.
Notwithstanding the foregoing provisions of this paragraph, upon the occurrence of any of the foregoing events at a time when a LAR is exercisable due to the completion of a Change of Control Transaction, the LAR shall continue to be exercisable for:
(f) for Participants who are U.S. Taxpayers, thirty (30) days; or
(g) for Participants who are not U.S. Taxpayers, six (6) months;
following the effective date of the Change of Control Transaction or until such earlier date as they are cancelled pursuant to paragraph 6; and provided further that the Board, in its discretion, may permit the exercise of any or all LARs held by a Participant other than a Participant who is a U.S. Taxpayer, in the manner and on the terms authorized by the Board.
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APPENDIX B
NON-DISCRETIONARY AWARDS TO NON-EMPLOYEE DIRECTORS
1. Types of Awards : All Non-Employee Directors shall receive Awards of Options and LARs as provided for in this Appendix B, commencing from the Effective Date.
2. Awards of Options : All Non-Employee Directors shall receive the following Awards of Options:
(a) Initial Grants of Options : Each Non-Employee Director who is appointed or elected to the Board for the first time shall be granted Options in the same amount (the Initial Grant ) as the most recent Annual Grant upon the effective date of such appointment or election. If the Non-Employee Director is appointed to the Board on the same day as the Board approves the amount of the Annual Grant, then the Initial Grant shall be effective on the same day as the Annual Grants; and
(b) Annual Grant of Options : Following the Effective Date, on an annual basis, each Non-Employee Director who is a Director on July 1 of each year shall be granted Options to purchase up to 8,000 Shares (the Annual Grant ) at the July meeting of the Board, provided that if at the date of the July meeting of the Board, a Blackout is in effect, the effective date of the grant of options shall be the first Trading Day following the end of the Blackout. The amount of the Annual Grant shall be determined by the Board based on review of the competitiveness of total compensation for the Directors compared to the market.
3. Exercise Price of Options : The Exercise Price of an Option granted to Non-Employee Directors pursuant to the Initial Grant and the Annual Grants shall not be less than the Market Value of the Shares determined on the date of granting of the Option.
4. Exercise Term of Options : One-third of the Options granted to Non-Employee Directors pursuant to the Initial Grant and the Annual Grants shall be exercisable on each of the first, second and third anniversaries of the Initial Grant and the Annual Grants, respectively, and in no event shall the Exercise Term of the Options exceed seven (7) years from the date of grant.
5. Manner of Exercise of Options : Subject to the provisions hereof and any Award Agreement, Options may be exercised by means of giving an Exercise Notice addressed to the Company.
6. Awards of LARs : All Non-Employee Directors shall receive the following Awards of LARs:
(a) Initial Grant of LARs At the time of the Initial Grant specified in paragraph 2(a) above, each Non-Employee Director shall receive one LAR in respect of each Option granted pursuant to the Initial Grant; and
(b) Annual LARs Grants At the time of each of the Annual Grants specified in paragraph 2(b) above, each Non-Employee Director shall receive one LAR for each Option received pursuant to such Annual Grants.
7. Amendments : Subject to any applicable regulatory or other approval requirements, the Board may at any time amend any of the provisions of this Appendix B without shareholder approval, including, without limitation, the number of Options and/or LARs awarded to Non-Employee Directors pursuant to paragraphs 2(b) and/or 6(b) above, or may terminate the operation of such provisions, provided that, in no event shall the Board amend the provisions of this Appendix B that relate to Awards of Options and/or LARs to Non-Employee Directors more than once every six (6) months.
8. Cessation of Directorship : In the event that a Non-Employee Director ceases to be a Director for any reason whatsoever, then all Options held by the Non-Employee Director shall continue to be exercisable until the earlier of: (i) thirty-six (36) months from the date on which the Non-Employee Director ceased to be a Director; and (ii) the expiration of the Exercise Term of the particular Option, but all LARs held by the Non-Employee Director shall terminate and be of no further effect immediately upon the occurrence of such Non-Employee Director ceasing to be a Director.
9. Application of Plan : Except as otherwise specifically provided for, or where inconsistent with, the provisions of this Appendix B, the applicable provisions of this Plan shall also apply to the Options and LARs granted to Non-Employee Directors hereunder.
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APPENDIX C
ISSUANCE OF SHARES ON ACCOUNT OF DIRECTORS FEES
1. Issuance of Shares on Account of Directors Fees : Commencing on the Effective Date and in each year thereafter, each Director may receive Shares on account of a specified percentage (the Specified Percentage ) of the amount of the Directors Annual Retainer, if any, payable to such Director (the Annual Share Payment ), such Specified Percentage to be determined by the Board, from time to time.
2. Aggregate Number of Shares Issued in Respect of Annual Share Payment : The aggregate number of Shares issuable to Directors in respect of any Annual Share Payment shall be equal to the Specified Percentage times, the Directors Annual Retainer, divided by the Market Value of a Share determined on the date of the initial issuance of Shares in respect of such Annual Share Payment.
3. Fractional Shares : In no event shall fractional Shares be issued to Directors in respect of the Annual Share Payment. If it is determined in paragraph 2 above that the Annual Share Payment would result in the issuance of a fractional Share, the aggregate number of Shares issuable in respect of the Annual Share Payment shall be rounded down to the nearest whole number of Shares and a corresponding increase shall be made to the balance of the Directors Annual Retainer owing to such Director.
4. Timing of Annual Share Payment : Directors shall receive Shares in respect of the Annual Share Payment, on a pro rata basis with the payment of the balance of the Directors Annual Retainer, at such time or times as such balance of the Directors Annual Retainer is payable.
5. Amendments : Subject to any applicable regulatory or other approval requirements, the Board may at any time amend any of the provisions of this Appendix C without shareholder approval, including, without limitation, the Specified Percentage, or may terminate the operation of such provisions, provided that, in no event shall the Board amend the provisions of this Appendix C that relate to the Annual Share Payment more than once every six (6) months.
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Exhibit 5
Opinion of Arlene Strom, Assistant Corporate Secretary of the Registrant, as to the legality of the Common Shares being registered
August 4 , 2009
SECURITIES AND EXCHANGE COMMISSION
100 F Street, N.E.
Washington, DC 20549
Dear Sir:
Re: Suncor Energy Inc. Form S-8 Registration Statement
I am Assistant Corporate Secretary with Suncor Energy Inc. (the Corporation). This opinion is given in connection with the Corporations Form S-8 to be filed with the United States Securities and Exchange Commission on or about August 4 , 2009 (the Registration Statement) relating to the issuance by the Corporation of up to 500,000 common shares (Common Shares) of the Corporation, issuable in connection with options (the Options) granted pursuant to the Suncor Energy Inc. Stock Option Plan (the Suncor Plan) in the manner set forth in the Registration Statement.
In giving this opinion, I have reviewed and examined such corporate proceedings and other documents, have considered such matters of law and made such inquiries of officers of the Corporation as I have considered appropriate and necessary in order to enable me to give the opinion expressed herein. As to certain matters of fact which have not been independently established, I have relied upon certificates of public officials. For the purposes of this opinion, I have assumed the genuineness of all signatures, the authenticity of all documents reviewed, and the conformity to the originals of all documents reviewed and which are conformed, facsimile or photostat copies thereof.
Based upon the foregoing, I am of the opinion that:
1. The Corporation has allotted and reserved the Common Shares to be issued and sold upon the exercise of the Options.
2. Upon the exercise of the Options and receipt by the Corporation of payment in full for the Common Shares, such Common Shares when sold as contemplated by the Suncor Plan will be duly and validly issued as fully paid and non-assessable.
The opinions expressed herein relate only to the laws of the Province of Alberta and the federal laws of Canada applicable therein. This opinion is effective as of the date hereof and you shall have the right to rely on this opinion only in connection with the registration of the Common Shares. No person other than the addressee hereof shall have the right to rely on this opinion for any purpose whatever without my prior written consent.
I hereby consent to the use of this opinion as an Exhibit to the Registration Statement and to the references to my name in this Registration Statement.
Yours truly,
SUNCOR ENERGY INC.
/s/ Arlene Strom |
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Arlene Strom |
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Assistant Corporate Secretary |
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Exhibit 23.1
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PricewaterhouseCoopers LLP |
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Chartered Accountants |
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111 5 Avenue SW, Suite 3100 |
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Calgary, Alberta |
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Canada T2P 5L3 |
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Telephone +1 403 509 7500 |
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Facsimile +1 403 781 1825 |
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration Statement of Suncor Energy Inc. (the Company) on Form S-8 dated August 4, 2009, of our report dated February 25, 2009 relating to the consolidated balance sheets as at December 31, 2008 and 2007 and the consolidated statements of earnings and comprehensive income, cash flows and changes in shareholders equity for each of the years in the three year period ended December 31, 2008 and relating to the effectiveness of internal control over financial reporting as at December 31, 2008 of the Company included in the Annual Report of the Company on Form 40-F for the year ended December 31, 2008.
Chartered Accountants
Calgary, Alberta
August 4, 2009
PricewaterhouseCoopers refers to PricewaterhouseCoopers LLP, an Ontario limited liability partnership, or, as the context requires, the PricewaterhouseCoopers global network or other member firms of the network, each of which is a separate and independent legal entity.
Exhibit 23.3
LETTER OF CONSENT
TO: Suncor Energy Inc.
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Suncor Energy Inc. |
We refer to the following report prepared by GLJ Petroleum Consultants Ltd.:
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the Reserves Assessment and Evaluation of Canadian Oil and Gas Properties of Suncor Energy Inc. effective December 31, 2008 and dated February 6, 2009 (the Report). |
We consent to the incorporation by reference in the Registration Statement of the Corporation on Form S-8 dated August 4, 2009, of our name, reference to and excerpts from the said reports by the Corporation relating to the reserves of the Corporation included in the Annual Report of the Corporation on Form 40-F for the fiscal year ended December 31, 2008.
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Yours truly, |
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GLJ PETROLEUM CONSULTANTS LTD. |
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ORIGINALLY SIGNED BY |
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James H. Willmon, P. Eng. |
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Vice-President |
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Calgary, Alberta |
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Date: August 4, 2009 |
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4100, 400 - 3 rd Avenue S.W., Calgary, Alberta, Canada T2P 4H2 · (403) 266-9500 · Fax (403) 262-1855 · GLJPC.com